Srebrenica as Genocide? The Krsti Decision and the Language of the Unspeakable

Abstract

In August 2001, a trial chamber of the International Criminal Tribunal for the former Yugoslavia (ICTY) handed down the tribunal's first genocide conviction. In this landmark case, Prosecutor v. Radislav Krsti6, the trial chamber determined that the 1995 Srebrenica massacres-in which Bosnian Serb forces executed 7,000- 8,000 Bosnian Muslim men-constituted genocide. This Note acknowledges the need for a dramatic expression of moral outrage at the most terrible massacre in Europe since the Second World War. However, this Note also challenges the genocide finding. By excluding consideration of the perpetrators' motives for killing the men, such as seeking to eliminate a military threat, the Krsti6 chamber's method for finding specific intent to destroy the Bosnian Muslims, in whole or in part, was incomplete. The chamber also loosely construed other terms in the genocide definition, untenably broadening the meaning and application of the crime. The chamber's interpretation of genocide in turn has problematic implications for the tribunal, enforcement of international humanitarian law, and historical accuracy. Thus highlighting instances where inquiry into motives may be relevant to genocide determinations, this Note ultimately argues for preserving distinctions between genocide and crimes against humanity, while simultaneously expanding the legal obligation to act to mass crimes that lack proof of genocidal intent.