Prosecutor v. Vujadin Popovic et al, Case No. IT-05-88-T (15 October 2009).

• Author: Mitchell, Christopher
• Position: Convictions for committing and aiding and abetting genocide

Introduction

The trial judgement in Prosecutor v Vujadin Popovic et al was handed down on 10 June 2010. (1) The case, which concerned crimes related to the fall of the United Nations' 'safe areas' of Srebrenica and Zepa in July 1995, involved seven co-accused, 315 witnesses and 5,383 exhibits admitted during more than three years of proceedings. To date, it is the largest trial in the history of the International Criminal Tribunal for the former Yugoslavia (ICTY).

The judgement confirmed that genocide was committed against the Muslims of Eastern Bosnia in July 1995 and, for the first time at the ICTY, considered the crime of conspiracy to commit genocide. It is particularly significant because two of the accused, former Bosnian Serb army (2) officers Vujadin Popovic (3) and Ljubisa Beara, (4) were convicted of genocide and sentenced to life imprisonment. A third, Drago Nikolic, (5) was convicted of aiding and abetting genocide and sentenced to 35 years imprisonment. The remaining four, Radivoje Miletic, (6) Ljubomir Borovcnnin, (7) Vinko Pandurevic (8) and Milan Gvero, (9) were convicted of crimes against humanity and/or violations of the laws and customs of war and received sentences ranging between five and 19 years imprisonment for their respective roles in these crimes. (10) Other noteworthy findings relate to the specific intent requirement for the direct commission of genocide versus aiding and abetting genocide, and whether convictions for both genocide and conspiracy to commit genocide would be duplicative and unfair to an accused.

1. Factual Findings and the Joint Criminal Enterprises to Forcibly Remove and Murder

   The accused were found to be individually responsible for committing or aiding and abetting the crimes of which they were convicted. Two were also found liable as superiors. Those accused convicted of committing (as opposed to aiding and abetting) crimes were found guilty through their participation in one of two joint criminal enterprises (JCEs) found to have existed during the relevant period. The first was a plan 'of the Bosnian Serb political and military leadership to forcibly remove the Bosnian Muslim population from Srebrenica and Zepa' (the 'JCE to Forcibly Remove'). (11) The second JCE was to murder the able-bodied Bosnian Muslim men from Srebrenica (the 'JCE to Murder'). (12)

   1. Background

      On 16 April 1993, the United Nations Security Council declared the east Bosnian town of Srebrenica a 'safe area' after a year of conflict between Bosnian Serbs and Bosnian Muslims in the region. Zepa was declared a 'safe area' three weeks later. The 'safe areas' existed for over two years, supervised by the United Nations Protection Force (UNPROFOR). (13)

   2. The JCE to Forcibly Remove

      Between March and July 1995, pursuant to a policy promulgated by Bosnian Serb President Radovan Karadzic in a document entitled 'Supreme Command Directive 7', the VRS restricted the delivery of humanitarian aid to the Bosnian Muslim population in Srebrenica and Zepa. (14) Restrictions were also imposed on the rotation of UNPROFOR personnel and their supplies of fuel, communications equipment, weapons, ammunition, food and water. (15) On 6 July, the VRS launched active combat operations against the Srebrenica enclave. On 9 July, President Karadzic authorised the VRS to capture the town of Srebrenica itself. After two further days of intensive shelling, and an ineffective attempt by UNPROFOR to halt the VRS advance with air strikes, Srebrenica fell to the VRS on the afternoon of 11 July 1995. (16)

      Approximately 20,000 Bosnian Muslim women, children, elderly and some men fled to the UNPROFOR compound at Potocari, five kilometres north of Srebrenica. (17) Overcrowding, heat, fear, poor hygiene and lack of food, water and medical supplies caused the humanitarian situation to deteriorate rapidly. (18) At the same time, 10,000-15,000 Bosnian Muslims, primarily men aged 16 to 65, started moving in a single-rile column through the woods towards Bosnian Muslim-held territory. (19) On 12 July, Bosnian Serb forces took control of Potocari and forcibly transferred 10,000-15,000 people to Bosnian Muslim-held territory. The remaining people were removed on 13 July. (20) Ten men were executed in Potocari during the forcible transfer, which was found to he a natural and foreseeable consequence of this JCE. (21)

      On 14 July 1995, the VRS attacked the Zepa enclave. (22) A ceasefire agreement providing for the removal of the population from Zepa was signed on 24 July and implemented from 25-27 July. (23) Many of the men from Zepa fled across the Drina River to Serbia. (24)

      The Trial Chamber's definition of the temporal scope of this JCE is significant because it recognised that the physical act of forcibly transferring the Bosnian Muslim population from Srebrenica and Zepa in July 1995 was the culmination of a much broader criminal plan. Thus, limiting aid to the enclaves, the military attacks and the terrorising and inhumane and cruel treatment of the population in Srebrenica and Potocari were all seen as 'intrinsic steps to the ultimate aim to force the Bosnian Muslim populations out of the enclaves'. (25)

   3. The JCE to Murder

      On 12 and 13 July, Bosnian Muslim men in Potocari aged between around 15 and 65 were separated from their families and transported to detention sites in the nearby town of Bratunac, (26) where an unknown number were executed. (27) By late afternoon on 13 July, approximately 6,000 men from the column fleeing through the woods had also surrendered to, or were captured by, Bosnian Serb forces stationed along two stretches of road which the column was attempting to cross. (28) Over 1,000 were executed at sites along these stretches of road. (29) The remaining prisoners were transported north to the Zvornik area, along with the men who had been separated in Potocari, where they were executed and buried over the next three days. (30) Smaller scale executions continued until late July. (31) In September and October 1995, the five largest primary mass graves were exhumed and the bodies reburied at smaller secondary gravesites. (32)

      The Trial Chamber found that to date, at least 5,336 individuals executed following the fall of Srebrenica have been positively identified through DNA analysis. The Trial Chamber further noted that given the ongoing discovery and exhumation of graves, as well as the ongoing DNA identification process, the final number could be as high as 7,826. (33)

      The crimes of murder, extermination and cruel and inhumane treatment were...