National courts and genocide: The Kravica case at the court of Bosnia and Herzegovina

Abstract

This article comments on the recent Kravica judgment of the Court of Bosnia and Herzegovina, which relates to the mass execution of over 1,000 Bosniaks after the fall of Srebrenica. The judgment relies extensively on the case law of the ad hoc tribunals, at times contributing towards its development. The Court dismissed JCE liability, holding that the accused were mere tools implementing the common plan. It convicted six foot soldiers for co-perpetrating genocide, developing an original test to infer their genocidal intent. Furthermore, it convicted their commander for genocide on the basis of command responsibility, taking a questionable stance regarding his mens rea. The Court declined to state wether the law requires a commander to be simply aware of his subordinate's specific intent, or to share that intent. This approach was justified on the assertion that the higher test was in any event met in this case. In an effort to prove it was so, the Court engaged in an unconvincing reasoning purporting to infer genocidal intent from the commander's omissive conduct. © Oxford University Press, 2009, All rights reserved.