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| |  | | Radoslav Brdjanin | | | context : | Former Yugoslavia  | | judgement place : | ICTY (Yugoslavia) | | status : | Sentenced | | particulars : | Sentenced to 32 years imprisonment; reduced on appeal to 30 years; transferred to Denmark to serve his sentence | | position : | President of the Crisis Staff of the “ARK” |
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| | | | The Trial Chamber, in this case, was obliged to examine the notion of genocide under the terms of Art. 4 of the Statute. In this respect the Trial Chamber concluded that murder had been committed by the Serb forces against non-combatant Bosnian Muslims and Croats imprisoned in camps and other detention centres as well as the deliberate infliction on Bosnian Muslim and Croat prisoners of conditions of life calculated in certain cases to bring about its physical destruction in whole or in part.
The Trial Chamber then examined the question as to whether these crimes had been committed with the specific intent necessary to qualify as genocide.
The Tribunal was not convinced that the only reasonable conclusion possible based on the evidence provided was that the crimes had been committed with the specific intent of eliminating the Muslim and Croatian groups in Bosnia from the ARK. This conclusion was reached notably because the number of Bosnian Muslim and Croatian men women and children which were forcibly displaced was exceedingly high compared to the number of Bosnian Muslims and Croatians subjected to the crimes listed under Art. 4 of the Statute. This fact did not permit the conclusion beyond all reasonable doubt that the intent existed to destroy in part the groups in question compared to an intent simply to displace them by force.
The judgment of the Trial Chamber in itself contributes to the development of international humanitarian law. The tribunal notes:
- Severity of pain or suffering for acts to qualify as torture:
“The seriousness of the pain or suffering sets torture apart from other forms of mistreatment. The jurisprudence of this Tribunal and of the ICTR has not specifically set the threshold level of suffering or pain required for the crime of torture, and it consequently depends on the individual circumstances of each case.”
“In assessing the seriousness of any mistreatment, the objective severity of the harm inflicted must be considered, including the nature, purpose and consistency of the acts committed. Subjective criteria, such as the physical or mental condition of the victim, the effect of the treatment and, in some cases, factors such as the victim’s age, sex, state of health and position of inferiority will also be relevant in assessing the gravity of the harm.” (Brdjanin, Trial Chamber, September 1, 2004, paras. 483, 484)
- Types of civilian objects or property:
“Two types of property are protected under Article 2 (d):
1. real or personal property in occupied territory, belonging individually or collectively to private persons, or to the State, or to other public authorities, or to social or cooperative organisations (except where such destruction is rendered absolutely necessary by military operations);
2. property that carries general protection under the Geneva Conventions of 1949 regardless of its location.” (Brdjanin, Trial Chamber, September 1, 2004, para. 586)
- In a genocide, desctruction may be limited to a certain geographical area:
“[T]he jurisprudence of the Tribunal supports the approach that permits a characterisation of genocide even when the specific intent to destroy a group, in part, extends only to a limited geographical area.” (Brdjanin, Trial Chamber, September 1, 2004, para. 703) | |    | |  |  | | nationality : | | | Bosnia and herzegovina | | | date of birth : | | | 09.02.1948 | | | last time seen : | | | Denmark | | | period of charges : | | | 01.04.1992 - 31.12.1992 | | | judgement period : | | | 12.07.1999 - 01.09.2004 | | | charges : | | | Crimes against humanity
War crimes | | | profile last modified : | | | 04.03.2008 |
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