SREBRENICA HISTORICAL PROJECT
Postbus 90471,
2509LL
Den Haag, The Netherlands
+31 64 878 09078 (the Netherlands)
+381 64 403 3612 begin_of_the_skype_highlighting +381 64 403 3612 end_of_the_skype_highlighting (Serbia)
Web site: www.srebrenica-project.com
______________________________________________________
THE HAGUE TRIBUNAL: DISTURBING LETTER FROM A DESPERATE INSTITUTION
On November 24, 2011, Nerma Jelacic, head of Outreach at the International Criminal Tribunal for the Former Yugoslavia, addressed to Ms. Eva Hamilton, Chief Executive and Editor-in-chief of Swedish Television [SVT] a letter containing a number of demands and criticisms in relation to SVT’s decision to broadcast the documentary, “Srebrenica: A Town Betrayed.”. The following are some of the more disputable points made in that letter:
[1] Jelacic letter, p. 3, example (b): Evidence from the exhumations that the Trial Chamber reviewed in the Krstić case shows that most of the victims were not killed in combat but in mass executions. In the mass graves exhumed so far, Tribunal investigators found 448 blindfolds on or with the victims' bodies as well as 423 pieces of cloth, string or wire that were used to tie the victims' hands . People who were blindfolded or had their hands tied behind their backs were obviously not killed in combat. [Reference: Par. 75, Krstić judgment]
In fact, the presentation of this evidence is cleverly arranged in order to create the misleading impression that 423 blindfolded individuals + 448, with their hands tied, for a total of 871, were indisputably execution victims in Srebrenica. In the original Krstić judgment, par. 75, exactly the same misimpression is encouraged. But we have read not only the judgment, but also the autopsy reports on which the judgment is based. It turns out that in most of these cases blindfolds and ligatures overlap, i.e. most of those who were apparently executed in this category had both blindfolds and ligatures at the same time. Their total number is 442, not 448. This is an example of trickery that the Tribunal uses in order to increase the apparent number of people who beyond any doubt had the status of prisoners at the time when they were shot.
[2] Jelacic letter, p. 4: Evidence from the exhumations that the Trial Chamber reviewed in the Krstić case shows that most of the victims were not killed in combat but in mass executions.
This assertion is then referenced to the evidence of prosecution expert witness Dean Manning given in the Krstić trial:
The Prosecution also relied on forensic evidence that the overwhelming majority of victims located in the graves, for who a cause of death could be determined, were killed by gunshot wounds. [Dean Manning, T. 3565, Krstić trial]
In fact, contrary to Ms. Jelacic’s assertion, the chamber in the Krstić judgment did not devote any significant attention to the mass of evidence that a substantial number of Srebrenica related deaths did result from combat with the 28th Division Army of Bosnia and Herzegovina column that was breaking out from Srebrenica and making its way to Tuzla. The only consideration of this issue is given in par. 77, and very briefly:
The Trial Chamber cannot rule out the possibility that a percentage of the bodies in the
gravesites examined may have been of men killed in combat. Overall, however, the forensic evidence presented by the Prosecution is consistent with the testimony of witnesses who appeared before the Trial Chamber and recounted the mass execution of thousands of Bosnian Muslim men…
That is hardly an indication of careful evidence review. Executions and combat casualties are entirely separate issues and testimony about “mass executions of thousands,” even if true, cannot be used to minimize or deny significant evidence that a substantial number were also legitimate combat casualties. The evidence for that is contained in the Prosecution’s own forensic record. That record shows that in a total of 627 of the autopsy reports the pattern of injury [shrapnel, mine fragment, high velocity projectile, etc.] is consistent only with death in combat. In fact, out of 1,919 sets of femur bones in Srebrenica related mass graves (which suggests the presence of approximately as many individuals who died of a variety of causes) death by bullet, which would be consistent with execution, occurred in 505 cases. Therefore, to the extent that the forensic record indicates something about the relative number of combat deaths and execution victims, it suggests strongly that they are similar. And it should be borne in mind that this data is contained in the autopsy reports that were prepared by the forensic experts working for the Prosecution of the Hague tribunal between 1996 and 2001. For the sake of a balanced picture of this evidence, it should be noted that out of 3,568 autopsy “cases” in that record, 1,583 [or 44,4%] consisted of reports which referred not to bodies but only to a few bones, from which no significant forensic conclusions about the cause and time of death can be drawn. In fact, in 92,4% of the latter cases, the Prosecution’s own forensic experts noted in their autopsy reports that no “cause of death” determination could be made.
Again, with respect to these specific issues, Nerma Jelacic’s letter is not informative but creates a smokescreen which conceals the questionable evidential basis on which the court judgments that she invokes in fact rest.
[3] Jelacic letter, p. 2, example (c): Proceedings before the Tribunal have proven beyond reasonable doubt that Srebrenica was a planned killing operation, and not an act of revenge by emotionally agitated Bosnian Serb soldiers. It is impossible to kill 7,000 to 8,000 people in the space of one week without methodical planning and substantial resources. Mobilizing such resources cannot be done at the whim of a few revenge-fuelled soldiers. It needs to be ordered and authorized by commanders at high-levels. In the Krstić case, the Trial Chamber heard a large body of evidence that demonstrated that the Bosnian Serb army mobilized resources between 11 and 19 July 1995 in order to kill Bosnian Muslim prisoners.
But contrary to Nerma Jelacic’s assertion that based on ICTY court judgments “it was proven beyond a reasonable doubt that Srebrenica was a planned killing operation,” not only was the existence of such a plan never demonstrated in court but, in fact, in view of the failure to produce it the Krstić appellate chamber stated that “the existence of a plan or policy is not a legal ingredient of the [genocide] crime.” [Krstić appellate judgment, par. 225] If actions allegedly constituting genocide occurred fortuitously, and not in a planned fashion, what is the basis for inferring the necessary special intent, dolus specialis, to exterminate the target group in whole or in part? The important point, however, is that Jelacic again misrepresents the judgment on which she relies. ICTY did not rule that there was a “planned killing operation,” but drew that conclusion inductively [see par. 26, Krstić appellate judgment], which in the absence of direct evidence makes the conclusion legitimately controversial and very much debatable.
Also refuting Nerma Jelacic’s arguments is the testimony of Richard Butler, veteran ICTY Prosecution military expert, who has testified in numerous Srebrenica-related trials. Quite recently, on March 23, 2010, he testified again in the trial of Pelemiš and Perić, before the State Court of Bosnia and Herzegovina [Case X-KR-08/602]. In his testimony in that trial, Butler makes several affirmations which render the existence of genocidal intent prior to the fall of Srebrenica on July 11, 1995, highly dubious.
First, he confirms that the initial goal of the Serbian military operation for which the planning began on 30 June, 1995, was only the reduction of the UN protected area to the city limits of Srebrenica. Second, the order to enter the city was issued by President Karadžić on 10 July, i.e. only one day before that actually happened so that the takeover of the enclave was an improvised decision taken in light of the operation’s overall success up to that point. Third, until the scope of the operation was suddenly broadened on 10 July to include the takeover of the entire enclave, it was conducted entirely on the Drina Corps level, without any involvement of the VRS General staff and other higher level structures. Fourth, Butler is “not aware” of a single case in which VRS used firepower on civilians in Srebrenica after 11 July, the date when the enclave was taken over and the operation ended. Fifth, concerning the deportation of civilians from the enclave, there is “no evidence in the documents” of any planning in that regard prior to 11 July in the morning when the decision to take Srebrenica was made. Sixth, Butler accepts that there was no expectation within the ranks of the VRS that prisoners might be executed on 12 or even 13 July.[1]
How compatible is this timeline and analysis of events with Ms. Jelacic’s thesis that the political and military leadership on the Serbian side intended the destruction of the Bosnian Moslem community in Srebrenica as such? If there was genocide in Srebrenica, was it a matter of prior intent or was it an afterthought?
Butler’s evidence directly contradicts Ms. Jelacic’s assertion on p. 4, section (a), of her letter that “Proceedings before the Tribunal have proven beyond a reasonable doubt that Srebrenica was a planned killing operation and not a spontaneous act of revenge.”
[4] On p. 4, section (c), of her letter Ms. Jelacic calls into question the statement that “only c. 2,000 individuals were executed in the first 48 hours following the fall of Srebrenica,” and that massive numbers [5,000, in fact] were killed as “military targets.” But, curiously, she does not cite the source. The person shown making that allegation in the documentary “Srebrenica: A Town Betrayed” is John Schindler, and his position at the time the relevant events were occurring is extremely important. He was a top ranking official of the US National Security Agency and in 1995 he was stationed in Sarajevo. Mr. Schindler was eminently in a position to know what he was talking about and his estimates certainly merit at least as much attention as the Tribunal’s judgments in view of the sensitive and confidential information that he must have been privy to.
[5] Ms. Jelacic is technically correct in conveying thus the substance of the ICTY judgment in the case of Popović and others: “... the Trial Chamber found beyond reasonable doubt that 'at least 5,336 individuals were killed in the executions [emphasis added] following the fall of Srebrenica. The Trial Chamber also notes that the evidence before it is not all encompassing. Graves continue to be discovered and exhumed to this day, and the number of identified individuals will rise. The Trial Chamber therefore considers that the number could well be as high as 7,826. “ [Jelacic letter, p. 4, section (c)].
But while it is true that the Popović chamber did make that statement, the assertions it contains are scientific nonsense. The finding “beyond reasonable doubt” that “at least 5,336 individuals were killed in the executions” is linked in the judgment to the DNA evidence that was submitted during trial. [Popović et al., Judgment, par. 624] DNA technology can only identify mortal remains by relating them to a sample given by a close relative, or it can help to reassociate parts of a dismembered body. It gives no information whatsoever about the time, place, and manner of death, which are the key elements that need to be established during a trial for the attribution of criminal liability to be sustainable. The Popović chamber simply assumes that since those people are dead they must have been executed, but since at the same place and time there was another significant cause of death – combat – that assumption cannot be made automatically. This particular misstatement, which is common to the ICTY judgment being invoked and to the Jelacic letter invoking it, is another item that clearly counterdicts Ms. Jelacic’s self-assured demand to Swedish Television that ICTY judgments be given privileged status in Srebrenica discussions.
Our readers may read Ms Jelacic’s letter and draw their own conclusions by clicking on the hyperlink.
The demands made by Ms. Jelacic in the letter she sent out to Swedish State Television on behalf of ICTY are an outrageous attempt by a judicial institution to interfere with the right of media to decide what it will or will not show, according to their own appraisal of the facts and of the public interest. Such attempts to exercise censorship or to subject media productions to a filtering process are unacceptable. They reflect ICTY’s desperation for the results of its staged trials to be given in serious discussions the weight that in the judgment of experienced professionals they do not deserve and for the massive evidence of defects that infect its flawed judgments to be concealed and suppressed.
Stephen Karganovic
President
Srebrenica Historical Project
November 29, 2011
November 29, 2011
[1] Butler does say further on that after the executions of 14 July he thinks that Zvornik Brigade officers and troops must have grasped that the prisoners being held in their zone of responsibility would be shot, but that is still not evidence of a genocidal plan predating the attack on Srebrenica.
