The Srebrenica Massacre - Nova Srpska Politicka Misao

Securing Verdicts: The Misuse of Witness Testimony at The Hague
a conversation between the two men in Pale on July 9, 1995, that the
Muslims had to be slaughtered. “Miroslav,” he alleges Karadzic said, “all
of them need to be killed.” 30 Momir Nikolic, another key Srebrenica
witness, described a conversation with Ratko Mladic in which the general
made a graphic gesture to indicate his intent to slaughter the Muslims.
31 There was no corroboration provided for the claims of either of
these plea-bargain witnesses.
During the Milosevic trial, prosecutors put forward a manager of a
casino in Vojvodina, a province in northern Serbia, who recounted how
Serbian government officials, within his earshot, boasted of having
armed the Krajina Serbs. The witness, identified only as C-48, also
claimed to have overheard Milosevic talking about the need to create a
Greater Serbia. Allegedly, Milosevic said that “a united Serbian state
must be made comprising the Republic of Serbia, Montenegro, Republic
of Srpska, and the Republic of Srpska Krajina.” 32 C-48 claimed
to have a diary in which he recorded all the things he overheard at the
casino. There were a couple of problems though. First, he never bothered
to record the dates on which he allegedly overheard conversations—dates
are usually an integral part of a diary. Worse still, he arrived
in court armed not with his actual diary, but with extracts that he had
copied from it. For some reason, he had destroyed the original diary.
As evidence of truthfulness, C-48 claimed that the OTP investigator
who interviewed him had seen the original diary lying on his desk and
had apparently assured him that he didn’t need to bring it to court. 33
Expanding “Command Responsibility”
Another tactic to which the ICTY resorted was to expand the notion
of “command responsibility” to encompass not only the ordering or instigation
of crimes by subordinates, knowledge or lack of knowledge of
the crimes of subordinates, and failure to prevent or punish the crimes
of subordinates, but also the failure to foresee the perpetration of crimes
and recognize that certain crimes might lead to other crimes. Such notions
arguably have a place in civil law in the determination and allocation
of liability; but they have no place in criminal law, which is based
on the presence or absence of a high degree of intent—the so-called mens
rea. To the tribunal, however, a commander’s “reason to know” about
the commission of war crimes is sufficient to prove criminal intent.
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