Prosecution Begins Srebrenica Evidence

For what must seem like the 100th time, Drazen Erdemovic appeared in court to tell about his participation in the murder of 1200 Bosnian Muslim civilians near Srebrenica. He admitted killing 100 of them himself. When asked by the Amicus how he carried out the executions, he replied that it was too horrific to talk about again. Mr. Erdemovic pled guilty to war crimes before the ICTY in 1996, was sentenced to five years in prison and was released in 2000 on the order of then ICTY President Gabrielle Kirk MacDonald. He was in court to introduce the Srebrenica crime base evidence in the Milosevic trial.
Milosevic has been charged with genocide and complicity in genocide for his alleged role in the massacre of 7000 to 10,000 Bosnian Muslim men and boys in Srebrenica in July 1995.

Erdemovic was 23 years old when he and other members of the 10th Sabotage Detachment of the Bosnian Serb Army (VRS) were ordered to Bratunac on July 10, to take part in the assault on Srebrenica. He testified there was little resistance and that the Bosnian Army defenders of Srebrenica (Naser Oric, his officers and noncommissioned officers) were away from the safe haven for a meeting in Tuzla. The timing did not seem coincidental, he said. The 500 to 700 Serbian soldiers took the town in a few hours. They found only about 200 civilians, mostly elderly, still in Srebrenica. They were ordered to send them to the stadium. They were not to shoot civilians.

For Erdemovic and his victims, the real horror began on July 15, when he was ordered by a Lt. Colonel to go to Branjevo Farm. There, he and seven other members of the 10th Sabotage Detachment were told what would happen. Buses would arrive carrying Bosnian Muslim civilians. They were to be executed. When he and two others objected, they were told they could join the captives and share their fate. For the next four hours, the men of the 10th Sabotage Detachment systematically shot approximately 1,200 men and boys between the ages of 16 and 60 in groups of 10, some with hands tied behind their backs and blindfolded. Erdemovic admitted killing 100 of them.
When it was over, the Lt. Colonel ordered the soldiers to Pilica where they were to execute 500 more men. Erdemovic and several others refused. The job was given to the Bratunac Brigade.

This testimony was directed at establishing the crime base, i.e. that a massacre of Bosnian Muslims occurred in Srebrenica. Given the amount of evidence amassed, much of it introduced at the trial of General Radislav Krstic, already convicted of genocide, it should not be a problem for the prosecution to prove a massacre occurred and that it was genocide. The harder part is connecting it to the higher ups, ultimately leading to Milosevic. It will be more difficult to establish Milosevic's responsibility for genocide or complicity in genocide.

Erdemovic testified that his orders came from the Main Staff of the VRS, as the 10th Sabotage Detachment was attached to the Department for Security, Safety and Intelligence which in turn was directly connected to the Main Staff. Under questioning by Milosevic, he added, 'In order to organize anything like that [the massacre] the authorities had to know about it. My unit could not have provided all the buses and things. It is clear that someone very high up was behind it.' His testimony, however, did not connect Serbia, the Federal Republic of Yugoslavia or the Yugoslav Army (VJ) to the massacre in any substantial way.

While Erdemovic was in hospital in Belgrade, another patient told him he and his unit had also participated in the takeover of Srebrenica. The patient was a member of the Serbian Security Service (SDB). He apparently said nothing about involvement in the massacre, however. Erdemovic testified that members of his unit received training by JNA officers in Pancevo, Serbia and that they brought back weapons, explosives and uniforms, as did his superior officer when he traveled to the Republic. While this is important in establishing Serbian and, thereby, Milosevic's involvement in the Bosnian war, it does not establish responsibility for the massacre at Srebrenica. Presumably, this will be left for other witnesses, telephone intercepts and possibly documentation.

In cross examination, Milosevic attempted to characterize Erdemovic as a lying opportunist, who agreed to accuse people for the Srebrenica massacre in exchange for a light prison sentence. Judge Richard May admonished Milosevic for inappropriate cross examination. Milosevic also tried to show that the killings were not ordered or approved by the VRS Main Staff or other 'higher ups.' He offered an order by General Tolimir on July 9, 1995 that the Geneva conventions were to be honored in taking Srebrenica, and another order by RS President Radovan Karadzic dated July 11, to the effect that civilians were to be protected and asked whether they wished to stay or leave Srebrenica. Erdemovic said he had never heard of either order.

Finally, Milosevic alleged that Erdemovic's superior officer and other members of the Detachment were promised gold and money for the killings. Erdemovic admitted he had heard rumors about that in the hospital, but said he had received nothing. There was no mention of who might have paid for the killings.

The prosecution is likely to take several weeks to produce evidence on Srebrenica. The key is whether they can link Milosevic to the crimes. Since a trial chamber of the ICTY has determined in the Krstic case that the massacre of 7,000 to 10,000 men and boys constitutes genocide, it should not be difficult for Mr. Nice and his team to establish it in the Milosevic case. However, it should be remembered that the Krstic case is on appeal and one of the main issues of the appeal is the definition of genocide and its applicability to the events in Srebrenica.

The more difficult problem will be establishing Milosevic's responsibility for genocide. The law requires that to be guilty of genocide one must have a specific intent to commit genocide. That means it must be shown that Milosevic intended to destroy all or a part of an identifiable racial, religious or ethnic group, in this case, three generations of Bosnian Muslim men from Srebrenica. In the recent Stakic judgment, the Trial Chamber noted, 'It is generally accepted, particularly in the jurisprudence of both this Tribunal and the Rwanda Tribunal, that genocidal dolus specialis [special intent] can be inferred either from the facts, the concrete circumstances, or 'a pattern of purposeful action.'' These issues will be explored in a future CIJ report.

Milosevic has also been charged with complicity in genocide. The Stakic Trial Chamber noted 'there is no material distinction between complicity in genocide and 'the broad definition accorded to aiding and abetting'.' The Chamber continued, 'Aiding and abetting genocide refers to 'all acts of assistance or encouragement that have substantially contributed to, or have had a substantial effect on, the completion of the crime of genocide'.' Such acts might include provision of necessary weapons, equipment and men. Where an actor plays a key role in planning, complicity would be elevated to commission of genocide. Again, this topic will be explored in a future article.

As for Mr. Erdemovic, 'he was a mere foot soldier' and 'a reluctant participant,' according to the Trial Chamber that handed down his sentence. He attempted to protest the slaughter and was told he would be killed if he didn't follow orders. He was 23 years old. The Trial Chamber also noted his exceptional cooperation with the prosecution (which obviously continues), his admission of guilt and his continually expressed remorse. These mitigated his sentence, while the horrible crime he committed was an aggravating factor: 'No matter how reluctant his initial decision to participate was, he continued to kill for most of that day.'

The issue now before a new Trial Chamber is the guilt of a man alleged to be responsible for exploiting Erdemovic and other foot soldiers to do his dirty work. Though Erdemovic is guilty of murder as a war crime, he is not guilty of genocide. Unlike those who planned and coordinated the Srebrenica massacre, he lacked the intent to destroy Bosnian Muslim men and boys as a group. His intent was to avoid being killed himself, which is nevertheless insufficient to excuse his killing 100 people. In the final analysis, however, it is unlikely that Erdemovic (and many more of the foot soldiers) would have become killers without the higher ups who devised the plan. Under the law, those higher ups are not answerable for the harm they did to the young men they turned into killers, but they are answerable for killing done under their orders and to carry out their plan.

Erdemovic's testimony is but the beginning of the Prosecution's case against Slobodan Milosevic for the crimes of Srebrenica.