ICTY: Prosecutor v. Krstić

Abstract

The Trial Chamber stated that the VRS had to have known the traumatic impact this course of action would have on the survivors, particularly in light of the nature of the Bosnian Muslim community as a traditional and patriarchal society. Such mass killings, the Chamber stated, "would have a lasting impact on the group." These killings served the goal of "effectively destroy[ing] the community of the Bosnian Muslims in Srebrenica as such and eliminated all likelihood that it could ever reestablish itself" in the strategically important Srebrenica enclave, which lay between two Serb territories. EXTERMINATION Although the crime of extermination, as a crime against humanity, was recognized in many international and national legal instruments, and has been the subject of a few domestic court judgments and in cases before the International Criminal Tribunal for Rwanda, this case represents the first time that this charge has been prosecuted at the ICTY. The Trial Chamber noted that the offenses of murder and extermination share the same mens rea, namely the intention to kill or the intention to cause serious bodily injury to the victim which the perpetrator must have reasonably foreseen was likely to result in death. However, in an interesting act of interpretation, the judges examined both the English and French definitions of the word, "extermination," which means to "drive out or banish" a person or group of persons beyond the boundaries of a state, territory or community. The judges recognized that the "ordinary use of the term 'extermination'" has come to acquire a more destructive connotation meaning the annihilation of a group of individuals. Consequently, the chamber initially analyzed the literal meaning of the term, before examining its ordinary meaning. This approach is slightly at odds with the typical statutory interpretation employed by the ICTY Trial Chambers, which tend to look first at the ordinary meaning of the terms, consistent with the approach set forth in Article 31(1) of the Vienna Convention on the Law of Treaties: "[a] treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose." The Trial Chamber then examined relevant texts from the International Law Commission, the Statute of the International Criminal Court ("ICC") and the Report of the ICC Preparatory Commission on the Elements of Crimes to conclude that the perpetrator must have killed one or more persons as part of a mass killing of members of the civilian population. Further, based on the Tadic Appeals Judgement, the judges concluded that there is no requirement under the crime of extermination, as compared with the offense of genocide, that the victims share any national, ethnic, racial or religious characteristics. Thus, extermination may be found where the crime is directed: 1) against a large number of individuals even though there is no discriminatory intent nor intention to destroy the group as such: or 2) whe...