Current Developments at the Ad Hoc International Criminal Tribunals

Extract

1. Substantive Developments

A. Crimes

1. Genocide

(a) Intent to destroy

The Appeals Chamber¹ in Blagojević & Jokić emphasized that in the context of genocidal intent (the intent ‘to destroy, in whole or in part, a national, ethnical, racial or religious group, as such’), displacement is not equivalent to destruction.² In Muhimana³ the Appeals Chamber held that evidence that the accused offered limited and selective assistance towards a few individuals does not preclude a trier of fact from reasonably finding the requisite intent to commit genocide.⁴

(b) Complicity in genocide: knowledge of the intent of the principal perpetrators

In Blagojević & Jokić, the Appeals Chamber, Judge Shahabuddeen dissenting, reversed Blagojević's conviction for complicity in genocide as an aider and abettor for his participation in events near Srebrenica.⁵ The Trial Chamber had found that, inter alia, Blagojević was aware of a forcible transfer operation and some murders in Bratunac (a town some distance from the sites at which mass killings were taking place), but he lacked knowledge about the mass killings. The Appeals Chamber accepted that genocidal intent may be inferred from inter alia evidence of other culpable acts systematically directed against the same group and therefore accepted ‘that the forcible transfer operation, the separations and the mistreatment and murders in Bratunac town are relevant considerations in assessing whether the principal perpetrators had genocidal intent’.⁶ However, it took the view that no reasonable trier of fact could find beyond reasonable doubt that, without knowledge of the mass killings, Blagojević’s awareness of the other facts relating to the forcible transfer operation showed that he had knowledge of the principal perpetrators’ genocidal intent. ⁷