519. The Chamber has found that, on 12 and 13 July 1995, about 25,000 Bosnian Muslim civilians were forcibly bussed outside the enclave of Srebrenica to the territory under BiH control.
The transportation of these Bosnian Muslim women, children and elderly from Poto~ari to Kladanj forms the basis of three counts in the indictment. It is included under the count of crime against humanity for persecutions (count 6). In addition, the Prosecution characterises the act as a deportation constituting a crime against humanity (count 7) or, alternatively, as an inhumane act constituting a crime against humanity (forcible transfer) (count 8).
1. General Considerations
520. The Prosecution defines deportation as the “forced displacement of civilians from the area in which they are lawfully present without grounds permitted by international law”. The Prosecution submits that it is “not necessary ?…g for civilians to be forcibly removed across a national border in order for the offence to be established”.1169 The Defence defines deportation as the forced removal of a person to another country,1170 and emphasises that not all forcible transfers of civilians are criminal offences.1171
521. Both deportation and forcible transfer relate to the involuntary and unlawful evacuation of individuals from the territory in which they reside. Yet, the two are not synonymous in customary international law. Deportation presumes transfer beyond State borders, whereas forcible transfer relates to displacements within a State.1172
522. However, this distinction has no bearing on the condemnation of such practices in international humanitarian law. Article 2(g) of the Statute, Articles 49 and 147 of the Geneva Convention concerning the Protection of Civilian Persons in Time of War (Fourth Geneva Convention), Article 85(4)(a) of Additional Protocol I, Article 18 of the ILC Draft Code and Article 7(1)(d) of the Statute of the International Criminal Court all condemn deportation or forcible
1169 Prosecutor’s pre-trial Brief pursuant to Rule 65 ter (E) (i), para. 131.
1170 Final Submissions of the Accused, para. 375-377.
1171 Final Submisisons of the Accused, para. 386.
1172 See in particular the commentary on the ILC Draft Code, p. 122 “Whereas deportation implies expulsion from the national territory, the forcible transfer of population could occur wholly within the frontiers of one and the same State”.
transfer of protected persons.1173 Article 17 of Protocol II likewise condemns the “displacement” of civilians.
523. In this regard, the Trial Chamber notes that any forced displacement is by definition a traumatic experience which involves abandoning one’s home, losing property and being displaced under duress to another location. As previously stated by the Trial Chamber in the Kupre{ki}
case,1174 forcible displacement within or between national borders is included as an inhumane act under Article 5(i) defining crimes against humanity. Whether, in this instance, the facts constitute forcible transfer or deportation is discussed below.
2. Evaluation of the facts (a) Lawfulness of the transfer
524. Article 49 of the Fourth Geneva Convention and Article 17 of Protocol II allow total or partial evacuation of the population “if the security of the population or imperative military reasons so demand”.1175 Article 49 however specifies that “?pgersons thus evacuated shall be transferred back to their homes as soon as hostilities in the area in question have ceased”.
525. As a preliminary matter, this condition is not satisfied in the present case. The Srebrenica citizens who had gathered in Poto~ari were not returned to their homes as soon as hostilities in the area in question had ceased. In fact, active hostilities in Srebrenica town itself and to the south of the enclave had already ceased by the time people were bussed out of Poto~ari. Security of the civilian population can thus not be presented as the reason justifying the transfer.
526. In addition to the security of the population, the Geneva Convention also allows for evacuations based on “imperative military reasons”. In terms of military necessity, two World War II cases are relevant. General Lothar Rendulic was accused of violating Article 23(g) of the 1907 Hague Regulations, which prohibits the destruction or seizure of the enemy’s property, “unless such
1173 According to Article 49 of the Fourth Geneva Convention: “Individual or mass forcible transfers, as well as deportations of protected persons from occupied territory to the territory of the Occupying Power or to that of any other country, occupied or not, are prohibited ?…g”. Article 85(4) of Protocol I characterises “?…g the deportation or transfer of all or parts of the population of the occupied territory within or outside this territory ?…g” as a grave breach of the Protocol. Article 18 of the ILC Draft Code and Article 7(1)(d) of the Statute of the International Criminal Court specify under the same heading “deportation or forcible transfer of population” as acts liable to constitute crimes against humanity.
1174 Kupre{ki} Judgement, para. 566.
1175 Article 49 of the Fourth Geneva Convention reads as follows: “the Occupying Power may undertake total or partial evacuation of a given area if the security of the population or imperative military reasons so demand. [...] Persons thus evacuated shall be transferred back to their homes as soon as hostilities in the area in question have ceased”. Security of the population and imperative military reasons are also listed in Article 17 of Protocol II as the only reasons that could justify the evacuation of the civilian population.
destruction or seizure ?isg imperatively demanded by the necessities of war”. Retreating forces under his command engaged in scorched earth tactics, destroying all facilities that they thought might aid the opposing army. In addition, Rendulic ordered the evacuation of civilians in the area.
Rendulic raised the defence of “military necessity”, since his troops were being pursued by what appeared to be overwhelming Soviet forces. The U.S. Military Tribunal at Nuremberg concluded that, even though Rendulic may have erred in his judgement as to the military necessity for evacuating the civilians, his decisions were still justified by “urgent military necessity” based on the information in his hands at the time.1176 By contrast, Field Marshall Erich von Manstein was convicted by a British military tribunal of “the mass deportation and evacuation of civilian inhabitants” of the Ukraine. Von Manstein argued that the evacuation was warranted by the military necessity of preventing espionage and depriving the enemy of manpower.1177 This was not found to be a legitimate reason for the evacuation of the population or the destruction of their property.1178 In addition, the judge advocate1179 noted that the Prosecution’s evidence showed that
“far from this destruction being the result of imperative necessities of the moment, it was really the carrying out of a policy planned a considerable time before, a policy which the accused had in fact been prepared to carry out on two previous occasions and now was carrying out in its entirety and carrying out irrespective of any question of military necessity”.1180
527. In this case no military threat was present following the taking of Srebrenica. The atmosphere of terror in which the evacuation was conducted proves, conversely, that the transfer was carried out in furtherance of a well organised policy whose purpose was to expel the Bosnian Muslim population from the enclave. The evacuation was itself the goal and neither the protection of the civilians nor imperative military necessity justified the action.
1176 Wilhelm List and others, US military Tribunal, Nuremberg (“ the Hostages Trial”), Law Reports of Trials of War Criminals, Vol. VIII, case No. 47, p. 69 (1948): “It is our considered opinion that the conditions as they appeared to the defendant at the time were sufficient, upon which he could honestly conclude that urgent military necessity warranted the decision made. This being true, the defendant may have erred in the exercise of his judgement but he was guilty of no criminal act”.
1177 Von Lewinski (called von Manstein), British Military Court at Hamburg (Germany), Dec. 19, 1949, in 16 Annual Dig. and Reports of Public International Law Cases 509, 521 (1949): “In a country so thickly populated as the Ukraine it was necessary for the security of the troops to remove the population from the battle or the combat zone. To do otherwise would have been to invite espionage. The evacuation of this zone was therefore mere military security.
Further, it was necessary to deprive the enemy of labour potential as the enemy put every able-bodied man into the army and utilised women and even small children. They could not allow them to fall into the hands of the enemy”.
1178 Id. at 522-23. Indeed, the judge advocate went so far as to suggest that deportation of civilians could never be justified by military necessity, but only by concern for the safety of the population. Id. at 523. This position, however, is contradicted by the text of the later Geneva Convention IV, which does include “imperative military reasons”, and the Geneva Convention is more authoritative than the views of one judge advocate.
1179 The British military tribunals did not issue reasoned opinions, so the law reports contain the submissions of the judge advocates, who advised the court on the law after the presentation of the prosecution and defence.
1180 Von Lewinski (von Manstein), op. cit. p. 522-23.
(b) The compulsory nature of the transfer
528. The Chamber next must determine whether the civilians were in fact forcefully transferred.
The commentary to Article 49 of Geneva Convention IV suggests that departures motivated by the fear of discrimination are not necessarily in violation of the law:
[T]he Diplomatic Conference preferred not to place an absolute prohibition on transfers of all kinds, as some might up to a certain point have the consent of those being transferred. The Conference had particularly in mind the case of protected persons belonging to ethnic or political minorities who might have suffered discrimination or persecution on that account and might therefore wish to leave the country. In order to make due allowances for that legitimate desire the Conference decided to authorise voluntary transfers by implication, and only to prohibit ‘forcible’
transfers.1181
529. However, the finalised draft text of the elements of the crimes adopted by the Preparatory Commission for the International Criminal Court provides that:
?tghe term 'forcibly' is not restricted to physical force, but may include threat of force or coercion, such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power against such person or persons or another person, or by taking advantage of a coercive environment.1182
530. The threats to Srebrenica residents far transcended mere fear of discrimination. The evacuation took place at the final stage of a campaign conducted to force the population to flee the enclave during a time when VRS troops were actively threatening and injuring the Bosnian Muslim civilians of Srebrenica. The negotiations between the Bosnian Muslim “representative”, Nesib Mand`i}, and General Mladi} at the second meeting in the Hotel Fontana on 11 July attest to the intimidating conditions in which the Bosnian Muslim civilians were evacuated.1183 The Trial Chamber has already found that, despite the attempts by the VRS to make it look like a voluntary movement, the Bosnian Muslims of Srebrenica were not exercising a genuine choice to go, but reacted reflexively to a certainty that their survival depended on their flight.1184
(c) The fact of the transfer within the borders of Bosnia-Herzegovina
531. The Bosnian Muslim women, children and elderly assembled at Poto~ari were forcibly transferred to Kladanj, an area in the territory of Bosnia-Herzegovina controlled by the ABiH, in order to eradicate all trace of Bosnian Muslims in the territory in which the Bosnian Serbs were looking to establish their own State. However, Bosnia-Herzegovina was the only State formally recognised by the international community at the time of the events. Since the Srebrenica civilians
1181 Commentary to Geneva Convention IV, at 279.
1182 Report of the Preparatory Commission for the International Criminal Court, Finalised Draft Text of the Elements of the Crimes, UN Doc. PCNICC/2000/INF/3/Add.2, 6 July 2000, p. 11.
1183 Supra, paras. 128-130.
1184 Supra, paras. 145 to 149.
were displaced within the borders of Bosnia-Herzegovina, the forcible displacement may not be characterised as deportation in customary international law.
532. The Chamber therefore concludes that the civilians assembled at Poto~ari and transported to Kladanj were not subjected to deportation but rather to forcible transfer. This forcible transfer, in the circumstances of this case, still constitutes a form of inhumane treatment covered under Article 5.