13. Partially Dissenting opinion of Judge Alphons Orie
With regard to the Trial Chamber’s legal findings on genocide in the
Municipalities, the majority concludes that certain physical perpetrators in five of the
Count 1 municipalities possessed the intent to destroy a part of the protected group of
Bosnian Muslims in Bosnia-Herzegovina as such. I respectfully disagree with this
conclusion.
It should be emphasized that in the relevant chapter, the Trial Chamber solely
deals with the intent of the physical perpetrators. In order for them to commit the crime
of genocide, thereby possibly engaging the Accused’s individual criminal responsibility
through various modes of liability, these individuals need to possess the intent to
destroy a part of the protected group as such.
Proving intent, in particular intent to destroy a part of a protected group, is
difficult. Evidence of utterances of the physical perpetrators suggesting such intent is
rare. There is an inherent and complex evidentiary issue with regard to establishing the
intent vis-à-vis the fate of the group as such, where the physical perpetrators act in a
limited geographic area and at a relatively low level of hierarchy and responsibility. As
is often the case when analysing mens rea, the mental state of the physical perpetrators
must be determined based on inferences from their acts and omissions. In this respect, it
is insufficient to rely on the fact that the physical perpetrators committed murder,
extermination, or persecution. The acts as established by the Trial Chamber were
horrendous, widespread, and systematic. However, the only question here is whether the
only reasonable inference to be drawn from their acts and omissions is that the physical
perpetrators intended to physically or biologically destroy a part of the protected group
as such.
The Trial Chamber rightly explored various factors and links between physical
perpetrators so as to carefully analyse whether intent to destroy could be found.
However, I differ from my colleagues in their findings. The prohibited acts and other
culpable acts were committed by the physical perpetrators on a large scale. The culpable
See chapter 8.10.2.
I am here not focusing on the requirement that this part of the group be ‘substantial’ as I consider that
the ‘intent to destroy a part of the group as such’ is already lacking, irrespective of the substantiality of
the part of the group. I note in this respect that the Trial Chamber, after having found by majority the
intent to destroy part of the group as such, concludes that the targeted group cannot be considered
‘substantial’.
Case No.: IT-09-92-T 2477 22 November 2017 `
acts included displacements, destruction of property, looting, or forced labour. While
many were killed, many others were displaced. I, however, cannot reasonably discount
that there were other reasons on the physical perpetrators’ minds than the intent to
destroy part of the protected group as such. I am convinced that the acts of the physical
perpetrators were committed with the intent to support the moving out of the BosnianMuslim
population so as to create ethnically pure areas, but not with the intent to
destroy a part of the protected group as such. In other words, for me, the evidence only
allows for an inference that the physical perpetrators intended to destroy the part of the
group’s presence in their respective municipalities, but not part of the group’s existence
per se.
Despite this difference of opinion, the majority and I come to the same
conclusion, i.e. that the physical perpetrators of crimes in the Municipalities did not
commit genocide
I note that for me the situation in Srebrenica is different. In that respect, I fully agree with the Trial
Chamber’s findings that the only reasonable inference from the evidence is that the physical perpetrators
in Srebrenica intended to destroy part of the protected group as such, as set out in chapter 8.10.2.
