The Srebrenica Massacre - Nova Srpska Politicka Misao

Securing Verdicts: The Misuse of Witness Testimony at The Hague
indifferent to that risk. 36
Apart from the fact that what is and what isn’t foreseeable is a subjective
question, and that criminal law is based on one’s intending a specific
crime, what the court is saying is utterly absurd. There may be any
number of good reasons forcibly to remove civilians from a war zone:
to get civilians out of harm’s way, to deploy armed forces to defend a
piece of territory, to exchange populations preliminary to a cessation of
hostilities, to return a population that had originally been driven out of
its homes. A perfectly legitimate military operation is thus dubbed “ethnic
cleansing” of which murder becomes the entirely foreseeable consequence.
Thus the commanders of this military operation become guilty
of this crime.
The ICTY broadened this responsibility even further. It declared that
to establish criminal responsibility “for a crime other than the one
agreed upon in the common plan arises only if, under the circumstances
of the case, (i) it was foreseeable that such a crime might be perpetrated
by one or other members of the group and (ii) the accused willingly
took that risk.” 37 Foreseeable that a crime “might” be perpetrated by
someone else! The reasoning not only makes people guilty of crimes
that they didn’t commit, but of crimes that they didn’t want anyone else
to commit, that they may have tried to stop people from committing
and that they may not even have known had been committed.
If a defendant enters into a joint criminal enterprise to transfer population
by the use of force, then he shares the intent of the direct perpetrators
to commit that crime. However, if those perpetrators also
commit genocide, then that defendant will become guilty of genocide
if it can be shown that he was aware that genocide was a foreseeable
consequence of the forcible transfer of population. With responsibility
for genocide treated with this kind of flexibility, and the term itself
treated loosely as was displayed by the ICTY in the Krstic case (as described
in Chapter 6), and with the joint criminal enterprise treated
with similar flexibility and opportunism, prosecution success in going
after whomever it chooses is virtually assured.
Different Standards for Different Groups
It should be noted, however, that the ICTY’s expansive views of command
responsibility and the joint criminal enterprise apply only to
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