In mid-July 1995, members of the Bosnian Serb Army ('VRS') massacred between 7000 and 8000 Bosnian Muslim men. This massacre took place in the town of Srebrenica, located in eastern Bosnia and Herzegovina. The violence was all the more distressing because Srebrenica fell within a United Nations 'safe area'. The purpose of the 'safe area' was to protect civilians from the armed conflict that was occurring throughout Bosnia and Herzegovina at the time. (1)
Radislav Krstic was a General-Major in the VRS. He also was a member of the VRS Main Staff. Radovan Karadzic, the President of the Republica Srpska and Supreme Commander of the VRS, assigned Krstic with command responsibility for the Drina Corps, a sub-unit of the VRS responsible for Srebrenica. VRS soldiers removed Bosnian Muslim women, children and the elderly from the Srebrenica enclave. The men who remained were systematically murdered. This was the plan devised by the VRS Main Staff. (2)
On 2 August 2001, a Trial Chamber of the International Criminal Tribunal for the Former Yugoslavia convicted Krstic on a variety of charges, mainly related to his role in the Srebrenica tragedy. (3) The UN Security Council established the ICTY in 1993 as an ad hoc body to investigate and prosecute persons responsible for serious violations of international humanitarian law committed in the territory of the former Yugoslavia since 1991. (4) The Trial Chamber found Krstic guilty on several counts, including as a perpetrator of genocide based on his participation in a joint criminal enterprise to commit genocide. (5) The Trial Chamber sentenced him to 46 years' imprisonment. Krstic and the Prosecution both filed appeals. (6)
On 19 April 2004, a five-member panel of the ICTY Appeals Chamber exercised its review powers and reversed the genocide conviction. (7) The Appeals Chamber found insufficient evidence that Krstic possessed the specific intent required to be convicted as a direct perpetrator of genocide based on joint criminal enterprise. (8) Instead, the Appeals Chamber substituted a conviction for secondary involvement and found Krstic guilty of aiding and abetting genocide. (9) The Appeals Chamber found that Krstic's involvement in extermination and persecution (crimes against humanity) and murder (a war crime) was properly characterised as aiding and abetting, not as direct participation. (10) The Appeals Chamber affirmed several other convictions entered by the Trial Chamber. It then substituted a single fixed sentence of 35 years' imprisonment. (11) In this regard, the Appeals Chamber was principally motivated by the fact that aiding and abetting is a form of individual criminal responsibility that calls for lower sentences than responsibility as a co-perpetrator or direct participant.
The Krstic Appeals Chamber decision makes two major contributions to international criminal law. It also provides a number of additional insights and clarifications. (12) In this case note, I will critically examine the two major contributions. Firstly, Krstic authenticates that genocide was in fact perpetrated against the Bosnian Muslims of Srebrenica. This serves an important didactic purpose. Srebrenica is the only incidence of genocide the ICTY has found amidst the pervasive violence that roiled the former Yugoslavia. Secondly, Krstic narrows the scope of joint criminal enterprise as a mechanism to attribute individual criminal liability for acts perpetrated by groups acting collectively. At the same time, it ensures that individuals are held responsible for collective violence through the secondary theory of aiding and abetting. Both of these contributions are germane to practitioners who may have occasion to invoke international criminal law in litigation before national, regional, or international courts. They are also of great importance to scholars of mass atrocity. On a less antiseptic note, the Krstic decision will have repercussions among victims, bystanders, and perpetrators in the former Yugoslavia, and accordingly may play some role in the essentially political process of peace and reconciliation in the wake of the endemic violence that has occurred there. …