JURIST Guest Columnist Scott Shackelford of Indiana University, Kelley School of Business says that the recent decision by the Court of Bosnia and Herzegovina on genocide raises pertinent questions about the legal standards used to prosecute those who commit the ultimate human rights abuse…

On January 25, 2012, the Court of Bosnia and Herzegovina (BiH) upheld the conviction and 31-year sentence of Radomir Vuković for his part in the 1995 Srebrenica massacre during the Bosnian civil war. The case was notable from several perspectives. One of the more interesting is what it says about proving the specific intent requirement of genocide, juxtaposing two separate legal doctrines in two different contexts. The first is state court proceedings determining whether an individual possessed the requisite mental state to commit genocide. The second is an international tribunal deciding whether the acts of non-state groups are attributable to a state. Coming as it is almost exactly five years after the International Court of Justice (ICJ) Bosnia and Herzegovina v. Serbia and Montenegro [PDF] decision, it is worth comparing and contrasting the doctrines at issue and which system has been more effective at holding perpetrators accountable.

For those unfamiliar with the case, Radomir Vuković was indicted for his alleged participation as a member of the special police force in a joint criminal enterprise with the aim of forcibly removing nearly 40,000 civilians from the UN safe area at Srebrenica and executing more than 1,000 Bosniaks in 1995. In April 2010, while the BiH did not find that Vuković had the specific intent to commit genocide, he was found guilty of assisting in the perpetuation of genocide in theVuković decision. However, the verdict was thrown out on appeal and a retrial ordered in June 2011.

The final BiH decision upholding Vuković’s conviction is not yet available in English, but analyzing the original BiH Vuković decision helps to illustrate its treatment of the specific intent requirement for genocide. Specifically, the court stated in dicta that to find Vuković guilty of genocide would require proof established beyond a reasonable doubt. In its analysis, the court weighed the evidence that the accused, Vuković and another special police officer named Milan Tomić, were not aware “of the totality of what was happening at Srebrenica” against the court’s findings that “the actions of the accused made a substantial contribution to the execution of the genocide.” The legal issue was whether the accused acts of murdering numerous prisoners confined in a warehouse proved that the accused themselves had genocidal intent. The appellate court ultimately concluded that knowledge of the plan and participation in it does not establish shared genocidal intent established beyond a reasonable doubt. The BiH upheld Vuković’s conviction for assisting in the perpetuation of genocide on January 25, but threw out Tomić’s due to a lack of evidence.

The Vuković decision is only the latest in a string of criminal prosecutions of those accused of participating in the genocide against the Bosniaks at Srebrenica, the largest mass murder in Europe since World War II. These include suits in Bosnia and Herzegovina, Germany, Austria, the Netherlands, Serbia, civil suits in the US and trials in both the International Tribunal for the Former Yugoslavia (ICTY) and the ICJ. However, the difficulty of proving specific intent to commit genocide links these cases, and echoes elements of the ICJ’s controversial Bosnian Genocide decision regarding whether Serbia had the specific intent to commit genocide.

For the first time in legal history, and of the four genocide cases that have come before the ICJ, the Court held in Bosnian Genocide that states can be found responsible for genocide [PDF]. The ICJ though found that Serbia lacked the specific intent to commit genocide, even though it determined that the actual Bosnian Serb perpetuators did have the requisite mental state. In reaching its decision, unlike in the Vuković decision, the standard implicitly laid down by the ICJ as applied to state control was beyond any doubt, not beyond a reasonable doubt. The ICJ relied on the Nicaragua v. US [PDF] effective “operational control” standard in making this determination, which requires a showing of “complete dependence” by non-state actors on the state, unlike the more flexible ICTY Prosecutor v. Tadic [PDF] “overall control” standard that considers instances in which a state has a role in organizing and coordinating a group’s acts. Scholarly commentary on the decision was divided, but it centered on the Court’s decision to demand a high burden of proof for both actus rea and mens rea, which can be difficult for something as nebulous as a state. Judge Antonio Cassese, the first president of the ICTY, for example attacked the Bosnian Genocide judgment as demanding an “unrealistically high standard of proof.”

A high evidentiary bar is necessary in genocide cases since specific intent is what distinguishes genocide from other crimes against humanity and human rights abuses. However, objective evidence pointing to a systematic pattern of genocide should not be ignored, especially in proving actus rea. In the Vuković decision, evidence that “the accused must have been aware that their murdering so many people … would destroy the Bosnian Mulsim group in part” was found sufficient to hold Vuković guilty for intentionally making a substantial contribution to commit genocide. Whether or not it was sufficient to prove genocide is debatable; the method of “substantial contribution” has proven to be a useful means of holding participants in genocide accountable for their actions somewhat similar to the evolving doctrine of incitement to genocide.

Thus, nearly five years after the Bosnian Genocide decision, both national and international courts continue to wrestle with the scope and meaning of specific intent, and what burden of proof should be required to find both individuals and states accountable for genocide. On the one hand, the BiH’s burden of proof of beyond a reasonable doubt might seem to provide a more workable standard for prosecutors than the ICJ’s Bosnian Genocide decision. However, the ICJ did, after all, find that the Bosnian Serb perpetrators possessed the specific intent to commit genocide, whereas the BiH ruled in 2010 that both Vuković and Tomić lacked that intent. The two relevant legal doctrines of specific intent and state responsibility though should not be conflated. What links the two disparate areas is the difficulty of defining the necessary burden of proof. Proving specific intent for an individual or actus rea for a state remains problematic even with substantial direct evidence of participation. As courts continue to weigh these requirements in genocide prosecutions, they should make use of evolving doctrines such as “substantial contribution” and incitement to genocide and not ignore the Tadic overall control standard. Only then will coming anniversaries of Bosnian Genocide mark the progressive development of regimes that hold participating individuals and states accountable for the ultimate human rights abuse.

Author’s Note: A special thanks to Professor Allen Weiner for his helpful comments on this article.

Scott Shackelford is an Assistant Professor of Business Law and Ethics at Indiana University, Kelley School of Business. He earned a law degree from Stanford Law School and a Ph.D. in Politics and International Studies from the University of Cambridge.

Suggested citation: Scott Shackelford, Prosecuting Genocide: Reflecting on the Vuković Decision, JURIST – Hotline, Feb. 8, 2012, http://jurist.org/hotline/2012/02/scott-shackelford-srebrenica.php.