Srebrenica Court Verdicts: Do They Make Sense?

The former commander of the Bosnian Serb Army’s Zvornik Brigade, Vinko Pandurevic, and the former commander of Bosnian Serb integrated police units, Ljubomir Borovcanin, were convicted of crimes against humanity for their role in the Srebrenica massacres, whose anniversary will be commemorated on July 11.

But legal experts have suggested that the verdicts were illogical, because the UN court in The Hague and the Bosnian state court in Sarajevo have handed down several verdicts in which Pandurevic’s and Borovcanin’s superiors, as well as their subordinates, have been convicted of genocide rather than crimes against humanity.

The fact that the legal processing of genocide and other crimes committed against Bosniaks from Srebrenica in July 1995 has been divided between a number of different prosecutors in The Hague, Sarajevo and Belgrade has led to a variety of differing approaches and charges.

“This is caused by the fact that various prosecutions approached cases individually and it was not possible to work on them systematically,” said former Bosnian judge Vlado Adamovic.

“Therefore the cases against Pandurevic and Borovcanin have not resulted in genocide verdicts, while other people of much lower rank have been convicted of genocide,” Adamovic added.

Nevertheless, historians and former employees of prosecutors’ officers in The Hague and Sarajevo point out that genocide and other crimes in Srebrenica have been investigated and processed in a high-quality manner, and as a result, a clear historical record has been established.

Iva Vukusic, a lecturer at Utrecht University in the Netherlands, said that the classifications of the crimes that were committed differ because they have been processed in so many different cases involving judges, prosecutors and lawyers from different legal systems.

“Law is not simple and even well-intentioned; competent judges may come to different conclusions after having watched and listened to the same pieces of evidence,” Vukusic said.

The Hague Tribunal, the Bosnian state court in Sarajevo and the Higher Court in Belgrade have so far sentenced a total of 39 people to 616 years in prison, plus three life sentences, for genocide, crimes against humanity and other crimes related to the massacres.

The verdicts handed down by the Hague Tribunal and the Bosnian state court have established that, in the days that followed the attack on Srebrenica by the Bosnian Serb Army and police on July 11, 1995, genocide was committed, resulting in the death of more than 7,000 Bosniak men and boys and the deportation of over 40,000 women, children and elderly people.

Serbia however does not recognise that the massacres constituted genocide so the Higher Court in Belgrade has tried Srebrenica defendants on other charges.

Judges’ opinions evolve over time

The first verdict that established that genocide was committed was pronounced in The Hague in 2001. After an appeal, the former deputy commander of the Bosnian Serb Army’s Drina Corps, Radislav Krstic, was ultimately sentenced to 35 years in prison for aiding and abetting the commission of genocide.

Veteran Bosnian lawyer Miodrag Stojanovic points out that, since the Krstic verdict, judges’ opinions have evolved in relation to the Srebrenica crimes.

As an example, Stojanovic said that Dragan Jokic, the chief of the Bosnian Serb Army Zvornik Brigade’s Corps of Engineers, was referred to in the Krstic verdict as a member of a joint criminal enterprise.

Three years later, the Hague Tribunal sentenced Jokic to ten years in prison for crimes against humanity, but the verdict in his trial indicated that he was not a member of the joint criminal enterprise.

Stojanovic said that he thinks there is a general coherence in the Hague Tribunal’s verdicts, but that the Bosnian state court’s verdicts are less logically coherent.

“Why? Well, it happens that some participants are mentioned in some [state court] verdicts, but they are acquitted of charges later on, so I get the impression that much more coordination of prosecutorial teams in cases related to Srebrenica is required and that they should, in particular, take into account the verdicts that were previously pronounced,” he explained.

Legal experts argued meanwhile it is illogical that the second-instance verdicts in the Pandurevic and Borovcanin trials established that they did not have “a specific intent to destroy Bosniaks in the Srebrenica area”, while members of certain Bosnian Serb units to whom they issued orders in the field had such an intent and were convicted of genocide.

“The verdicts against Pandurevic and Borovcanin for crimes against humanity and their subordinates for genocide demonstrate that the overall events and all the participants were not treated in a unified manner,” Adamovic said.

“Had they all been considered cumulatively, it would have been different, but it did not happen, so these illogical things have occurred,” he added.

Belgrade-based lawyer Aleksandar Lazarevic, who represents defendants at the Bosnian state court, said he thought it was “absurd from a legal point of view for a commander not to have genocidal intent and his subordinate to have it”.

“Genocidal intent implies awareness of a plan, but if a commander is not aware of that plan, how can his subordinate in the field be?” Lazarevic asked.

As an example, Stojanovic mentioned a case in which Mendeljev Djuric, the commander of the First Company of the Bosnian Serb police special units’ Jahorina Training Centre, was sentenced to 20 years for genocide, while his superior Borovcanin was not.

Vukusic explained that each case is treated on its own merits and judges often disagree, even though they employ the same legal standards and analyse the same pieces of evidence.

“Each trial is unique, prosecutors accuse and judges pass judgements on the basis of evidence in that specific trial. It is not easy to establish genocidal intent. We should absolutely not seek malicious intent, illogicality or lack of competence in all that,” Vukusic explained.

Historian Christian Axboe Nielsen also said that each case should be considered individually.

“International and domestic courts operate on the principle of individual criminal responsibility,” Nielsen said.

“It is certainly possible for individual soldiers, policemen or commanders to have genocidal intent, while other participants in the same operation do not have such intent. It is possible, both logically and legally. I have seen clear examples of such cases in the evidence I reviewed in The Hague,” he added.

The truth is most important

Nielsen argued that convictions for crimes against humanity are not acquittals, and are not less important than genocide verdicts.

“Judgments of conviction for crimes against humanity refer to one of the gravest crimes on earth. It is wrong to think that only genocide verdicts should be pronounced,” he said.

In Adamovic’s opinion, the classification of crimes – specifying whether someone has been convicted of genocide or crimes against humanity – is important for legal professionals or historians, but not as much for victims of these crimes, who want the perpetrators to be convicted.

“I think the average victim does not care what type of label the judges put on the crime, just that those responsible are punished. In the end, that is justice,” he said.

Lazarevic argued that despite the legal illogicality, verdicts for Srebrenica crimes have established what happened in July 1995.

“As far as the facts are concerned, about 95 per cent of the facts have probably been resolved. The ultimate question remains – ‘Who ordered the murder of the captives?’ – while the classification of that crime is a secondary issue,” Lazarevic said.

According to Vukusic, of all the crimes committed during the wars in the former Yugoslavia, Srebrenica has been the best investigated, and there is “a clear picture of what was happening there”.

As a result, it will undoubtedly be possible to say in the future that the various verdicts have determined what happened during the worst atrocity committed in Europe since World War II, she added.

“There is a clear picture of what happened, starting from the attack on the enclave to the day when the executions were completed … the VRS [Bosnian Serb Army] leadership in particular, as well as some other institutions and individuals, acted systematically with the intent to destroy the Bosniak population in that area,” Vukusic explained.

“To that end, men were killed, women and children deported, the mosque was blown up, bodies were buried and reburied two months later in order to conceal evidence of the crime. Some of the convicts committed genocide, some committed crimes against humanity, but we have a pretty good idea of what happened and how it happened,” she said.