A self-styled “Independent” International Commission of Inquiry appointed at the initiative of a separatist, genocide-denying Bosnian Serb leader and headed by an Israeli academic with a record of exaggerated pro-Serb writings and public comments, last week issued its “Concluding Report” on “Sufferings of All People in the Srebrenica region between 1992 – 1995.”
As the son of two survivors of Auschwitz and Bergen-Belsen who were deeply committed to transmitting to future generations evidence of the crimes perpetrated against European Jewry during the Holocaust, I am especially appalled by the report’s shameless manipulation of the truth. It is a document that deserves to be consigned to the dustbin of history, used only to demonstrate the moral failing of individuals — the proverbial “useful idiots,” as it were — who engage in genocide denial and distortion.
The report is an embarrassment to scholarship and flies in the face of the established record in international law. In addition to being a legal and factual abomination, it blatantly ignores one judgment after another by the United Nations International Criminal Tribunal for the Former Yugoslavia (ICTY). The commission instead props its report heavily on one dissenting trial opinion in an early ICTY case. It also depicts as gospel the writings of largely discredited Srebrenica genocide deniers, without addressing the writings of historians and legal scholars who have reached diametrically different conclusions.
In more than 1,000 pages, this report single-mindedly rejects or ignores the findings of a succession of international tribunals, including not only the ICTY but also the International Court of Justice at the Hague, that the slaughter of some 8,000 Bosniak – that is, Bosnian Muslim – men and boys in and around the town of Srebrenica in July 1995 at the hands of Bosnian Serb paramilitary troops and the simultaneous forcible deportation from there of more than 25,000 Bosniak women, children, and elderly men constituted genocide.
The paramilitary forces in question were in the service of ultra-nationalist Bosnian Serbs who in 1991-1992 refused to be part of the newly established Republic of Bosnia and Herzegovina and instead set up the separatist Serbian Republic of Bosnia and Herzegovina, known as Republika Srpska. The Serb-dominated Republika Srpska subsequently became one of the two entities that make up the multi-ethnic state of Bosnia and Herzegovina pursuant to the 1995 Dayton Accords, the peace agreement that ended the brutal Bosnian armed conflict but has maintained and reinforced ethnic divisions.
The report also repeatedly casts the Bosniaks as aggressors and the Bosnian Serbs as victims in a rewriting of history reminiscent of Third Reich Propaganda Minister Joseph Goebbels’ justifications for Nazi German antisemitism.
The report constitutes the desperate continuation of a quarter century of efforts by Bosnian Serb nationalists and their acolytes to persuade the world that what happened at Srebrenica was not a genocide. These efforts range from attempts to dispute the death toll to blaming the victims for the slaughter by claiming that it was a reaction to Bosniak provocations. In 2018, the Republika Srpska parliament rejected a 2004 report by a previous Republika Srpska government that acknowledged the Srebrenica massacre.
Cynical Choice of Commission Head
A particular cynical feature of the ongoing genocide-denial campaign was the appointment of Israeli academic Gideon Greif to head the Independent International Commission of Inquiry, presumably to lend an aura of pseudo-scholarship to what was clearly intended to be yet another refutation, or at least whitewashing, of the widespread violations of international law – among them horrific crimes against humanity and genocide – committed by Bosnian Serb paramilitaries and their handlers during the Balkan wars of the 1990s.
Greif has long been a popular figure among Serb nationalists, and his appointment as head of this particular commission in 2019 came as no surprise. Over the years, Greif has made a point of wildly exaggerating the number of Serb victims during World War II at Jasenovac, a complex of five concentration camps often referred to as the “Auschwitz of the Balkans.” Jasenovac was the most notorious of a network of such camps run by the fascist Ustaša movement in the Independent State of Croatia, an autonomous Nazi puppet state established in 1941. According to the U.S. Holocaust Memorial Museum, somewhere between 77,000 and 99,000 Serbs, Jews, Roma, and Croat opponents of the Ustaša regime were brutally murdered at Jasenovac. The Jasenovac Memorial Site has identified by name 83,145 victims who perished there. And yet, Greif has repeatedly inflated the number of Jasenovac victims, to the dismay of responsible historians. In 2019 alone, he set the number at “at least 800,000,” and “at least 700,000.” – as if the actual record of Ustaša crimes wasn’t bad enough.
In the case of this latest report on the Srebrenica genocide (hereinafter referred to as the Greif Report), the commission members claim that “we kept our distance from all views and policies of any official institution, so as to maintain our strict neutrality and independence” (p. 18). Other members of the commission included, among others, a professor of political science at the University of Vienna; a professor of political science at the Graduate School of Social Design Studies at Rikkyo University in Tokyo; a licensed clinical psychologist who is an affiliate professor of justice at the University of New Hampshire-Durham; an official of the Ministry of the Interior of the Republic of Nigeria holding the rank of general; and a German lawyer “with a special interest in international litigation cases as well as cases of international humanitarian law.” (Greif Report, p. 1105) Yet their product is essentially nothing more than an elaborate regurgitation of the decades-long Srebrenica genocide denial by Republika Srpska and Serb nationalist politicians, pseudo-academics, and others.
The report concludes “after a thorough investigation . . . that neither the individual crime of genocide nor genocide in general took place in Srebrenica” and that “there is no indication that there was a special intent to commit genocide. Furthermore, no substantial part of the protected group of Muslims in Bosnia was destroyed.” (Greif Report, p. 86.)
A parallel commission headed by Professor Raphael Israeli issued an earlier report dated October 2020 “on Sufferings of Serbs in Sarajevo between 1991 and 1995.” This report was similarly designed by all appearances to exonerate the Republika Srpska leadership and armed forces of responsibility for the carnage they brought upon the Bosnian capital. It concluded broadly (at p. 1004), that, “[t]he Bosniak nationalist myth of the intended Serbian genocide of Bosnian Muslims has definitively been dispelled.”
The two commissions were set up at the initiative of Milorad Dodik, a former prime minister, then president of Republika Srpska and now the Serb member of the tripartite presidency of Bosnia. The commissions were formally appointed by consecutive decisions (04/1-012-2-345/19 and 04/1-012-2-346/19) “of the Government of Republika Srpska … dated February 7, 2019.”
A point-by-point dissection of the Greif Report’s chain of specious arguments might lend too much credence – and test the patience of readers of this article. But some elements are particularly illustrative of the twisted logic.
First, some background seems in order. The Kingdom of Yugoslavia was created in the aftermath of World War I out of Balkan regions of the defunct Ottoman and Austro-Hungarian Empires. Between 1945 and 1980, the independent Communist and former anti-fascist partisan leader Josip Broz Tito kept Yugoslavia’s internal domestic tensions, fueled in part by ethnic rivalries, largely under control. Within a decade of Tito’s death, however, the nationalist Serbian president, Slobodan Milošević, pushed the envelope with respect to Serbian domination of the country, effectively blowing up the intricate and delicate balance of power that had been maintained since the end of World War II.
As I have previously written in Just Security, during the brutally fought 1992-95 Bosnian War, the paramilitary forces of what was then the Bosnian Serb breakaway proto-state of Republika Srpska, with the support of the neighboring Serbian government, engaged in a savage campaign to expel non-Serbs from the predominantly ethnic Serb part of Bosnia. It should be noted that war crimes were commonplace in this tragic conflict, and that Bosnian Serbs were not the only ones who committed them.
In 1993, the U.N. Security Council designated the eastern Bosnian town of “Srebrenica and its surroundings as a safe area which should be free from any armed attack or other hostile act.” Over the course of several days beginning on July 11, 1995, Bosnian Serb forces commanded by General Ratko Mladić murdered approximately 8,000 Bosniak men and boys between the ages of 12 and 77 from Srebrenica and forcibly expelled around 25,000 Bosniak women, children, and elderly men from the Srebrenica enclave.
Beginning with the July 2001 conviction of Republika Srpska Major General Radislav Krstić, the ICTY has found six Bosnian Serbs, including Mladić and former Republika Srpska President Radovan Karadžić, guilty of genocide in connection with the Srebrenica killings. The International Court of Justice also held in 2007 that “the acts committed at Srebrenica … were committed with the specific intent to destroy in part the group of the Muslims of Bosnia-Herzegovina as such; and accordingly that these were acts of genocide.”
True to form, the Greif Report engages in the age-old rationalization of blaming the victims for the racial, ethnic, or religiously motivated decimation committed by the Serb perpetrators, and, for good measure, disparages as illegitimate and politically biased not just the ICTY but just about all war crimes trials beginning with the International Military Tribunal at Nuremberg (which the report annoyingly persists in miscalling “Nuremburg” – see Greif Report, pp. 712, 713, 719, 724, 725).
The chapter entitled “Legal Findings on Srebrenica” begins with the proposition that the ICTY “has failed to demonstrate that the killings were committed with the special intent to destroy a substantial part of the protected group of all Muslims in Bosnia.” (Id., p. 55.) The report then concedes that:
It is well established that where a conviction for genocide relies on the intent to destroy a protected group “in part,” the part must be a substantial part of that group. The aim of the Genocide Convention is to prevent the intentional destruction of entire human groups, and the part targeted must be significant enough to have an impact on the group as a whole.” (Id., p. 58.)
Among the authorities selectively cited for this proposition is the highly respected Nehemiah Robinson’s The Genocide Convention: A Commentary. The Greif Report cites Robinson three times for the proposition that, “a perpetrator of genocide must possess the intent to destroy a substantial number of individuals constituting the targeted group.” (Id., pp. 59, 86, 1035.)
The report takes note of but dismisses peremptorily the finding of the ICTY Appeals Chamber in the Kristić case that “[b]ecause most of the Muslim inhabitants of the region had, by 1995, sought refuge within the Srebrenica enclave, the elimination of that enclave would have accomplished the goal of purifying the entire region of its Muslim population.” (Id., p. 65.)
Applying tortured sophistry, including an artificial and legally baseless attempt to determine whether the Bosniaks of Srebrenica constituted a “substantial” or “significant” part of Bosnia’s Bosniak population as a whole, the Greif Report then concludes: “It is clear that the definition of a substantial group given by the chamber of appeals in Krstić and the later verdicts does not indicate that a real genocide had happened in Srebrenica.” (Id., p. 66.) The report continues in this bootstrapping vein with the wholly conclusory contention that:
Genocide as such could not have taken place in Bosnia. As the crime of genocide by its very nature requires the intention to destroy at least a substantial part of a particular group, genocide as such can only occur if a substantial part of a particular group is physically destroyed. This destruction must be established as an objective fact. (Id., p. 85.)
What the Greif Report fails to mention is that Robinson, the director of the Institute of Jewish Affairs of the World Jewish Congress, where I work, is recognized to this day as one of the leading authorities on the Genocide Convention, and wrote in the very commentary cited in the report that:
[T]the intent to destroy a multitude of persons of the same group because of their belonging to this group, must be classified as genocide even if these persons constitute only part of a group either within a country or within a region or within a single community, provided the number is substantial . . .. It will be up to the courts to decide in each case whether the number was sufficiently large. (Nehemiah Robinson, The Genocide Convention: A Commentary, New York: Institute of Jewish Affairs, World Jewish Congress, 1960, p. 63, emphasis supplied.)
In other words, Robinson, the authority cited repeatedly by the Greif Report, stated unambiguously that whether or not the number of victims was “sufficiently large” to constitute a genocide was a matter for the courts to decide. And even though the Greif Report turns a blind eye to the decisions that followed the Krstić judgment, they are in fact determinative, both with respect to substantiality and as regards whether a genocide occurred at Srebrenica. In the interest of at least some measure of brevity, I will only highlight two of these ICTY judgments here.
In Prosecutor v. Zdravko Tolimir (8 April 2015, IT-05-88/2-A), for example, the ICTY Appeals Panel held decisively and unambiguously that “the killing of at least 5,749 Bosnian Muslim men from Srebrenica” constituted a genocidal actus reus, perpetrated with the requisite genocidal intent. (¶ 190.) The Appeals Panel in Tolimir also affirmed the Trial Chamber’s holdings that (a) the infliction of serious bodily or mental harm on these Muslim men and boys prior to their being executed constituted a separate act of genocide; and (b) that the “the suffering of the women, children, and elderly forcibly transferred from Srebrenica amounted to serious mental harm under Article 4 of the [ICTY] statute” (¶ 195) – that is to say, another of the acts constituting genocide under both the ICTY Charter and the Genocide Convention.
The ICTY Trial Chamber convicted Ratko Mladić of genocide, holding that the Bosnian Muslims of Bosnia-Herzegovina constituted a protected class within the meaning of the ICTY’s statute. (Prosecutor v. Ratko Mladić, ICTY, Judgment, Trial Chamber, 22 November 2017, IT-09-92-T, ¶¶ 3442, 3538.) Among the bases for Mladić’s conviction were findings that Respublika Srpska units terrorized and abused the Bosnian Muslims of Srebrenica (Id., ¶ 3541); “that these acts constituted cruel and/or inhumane treatment (Ibid);” and that “the suffering endured by the Bosnian Muslims of Srebrenica in the period before they were killed, was intense, prolonged, and serious. Many spent their last moments in a state of desperation.” (Id., ¶ 3543.) The Trial Chamber concluded:
that thousands of Bosnian Muslims of Srebrenica were subjected to serious bodily or mental harm which included: threats of death or treatment which brought them to the point of death or suicide; knowledge, in many cases, of impending death due to the terrible manner in which they were treated prior to being killed; and long-lasting physical and mental damage. The harm inflicted upon the victims by the perpetrators preceded the suffering which was inherently part of the acts of killing. The Trial Chamber, therefore, finds that the serious bodily or mental harm suffered by thousands of Bosnian Muslims of Srebrenica contributed to the destruction of the targeted group as a result of actions of the physical perpetrators. (Id., ¶ 3544.)
The Mladić Trial Chamber also explained why the Bosnian Muslims of Srebrenica met the substantiality threshold for a finding of genocide despite the fact that they “formed less than two per cent of the Bosnian Muslims in Bosnia-Herzegovina as a whole.” (Id., ¶ 3541.) The Trial Chamber made clear “that in determining the substantiality of the group, numerical size of the part in absolute terms is one factor among many.” (Id., ¶ 3550.) Among other factors to be taken into account are the “numerical size of the part in relation to the overall size of the group; the prominence of the part of the group within the larger whole and whether it is emblematic of the overall group or essential to its survival; the area of the perpetrators’ activity and control; and the perpetrators’ potential reach.” (Ibid.)
In finding substantiality, the Mladić Trial Chamber considered the joint impact of
the murder of many thousands of Bosnian-Muslim males, the destruction of political or religious monuments and homes, and the forcible transfer of Bosnian-Muslim women, children and the elderly. The physical perpetrators of these acts carried them out knowing that they would be demonstrative of the ultimate fate that awaited Bosnian Muslims in Bosnia-Herzegovina. This demonstrative effect would be due to the symbolic impact of the murder of Bosnian Muslims in a designated safe area, the destruction of a number of religious buildings and Bosnian-Muslim homes in the region, and the forcible transfer of all or substantially all of the remaining Bosnian-Muslim population. (Id., ¶ 3553.)
Highlighting Dissent, Ignoring Court Majority
It would have been one thing if the Greif Report had addressed the substance of the Tolimir and Mladic judgments, as well as others (Karadžić; Popović, Beara, et al.) in which both trial and appeals chambers of the ICTY explained in detail why the crimes committed at Srebrenica indeed constituted genocide. But the authors of the report ignore them out of hand, choosing instead to hang their collective hat on a dissenting opinion, and from a trial judgment at that. The report devotes the better part of six pages (Greif Report, pp. 624-629) to Judge Prisca Matimba Nyambe’s dissenting opinion in Tolimir, in which she maintained that she would have acquitted the defendant. This is, of course, a wholly academic exercise in pseudo-intellectual futility, since it makes little sense to herald the merits of a dissenting opinion without giving any consideration to the facts and legal arguments set forth by the majority, or to the appellate judgment that affirmed the trial chamber’s finding of genocide.
This is akin to pretending to discuss California v. Texas, the U.S. Supreme Court’s most recent decision on the Affordable Care Act, by citing exclusively to Justice Samuel Alito’s dissent and studiously ignoring Justice Stephen Breyer’s majority opinion in which he was joined by six of his colleagues, including Chief Justice John Roberts. Or even worse, discussing a dissenting opinion of a lower federal court, in which the majority opinion was upheld by the Supreme Court with no Justice giving credence to the anomalous dissenter below. Or, for that matter, holding up Plessy v. Ferguson as the judicial authority on the constitutionality of racial segregation laws while ignoring the intervening decision in Brown v. Board of Education.
If a student of mine at Columbia or Cornell Law School were to present this type of argument in a term paper in my course on the law of genocide, they would not receive a passing grade.
The Greif Report goes to considerable and unbearable lengths to dismiss as “victor’s justice” and “retributive justice” not just the ICTY but the International Military Tribunals at Nuremberg and Tokyo and the very rationales on which they were predicated. According to one of the more odd passages of the report, retributive justice “is designed to pay back suffering with proportional suffering, although proportionality can be very difficult to gauge … It is intended to be payback in kind or lex talions [sic]. Ironically, in the case of Bosnia and the ICTY retributive justice has pitted ethnic groups against each other, actually making ethnic hatred worse.” (Id., p. 680) It’s difficult to conceive of any purpose to including this argument except to undermine the legitimacy of the ICTY and its judgments, a goal popular in Banja Luka, the capital of Republika Srpska, and among Serb nationalists in Belgrade in neighboring Serbia. But it is unlikely to find traction elsewhere.
Blaming the Victims
Yet another distasteful aspect of the Greif Report is its authors’ apparent determination to hold the Bosniaks responsible for the actions of the Bosnian Serbs, essentially blaming the victims. A large part of the report is devoted to the genocide perpetrated by the Croat Ustaša movement against Serbs and Jews in the Independent State of Croatia during World War II, as well as lengthy accounts of purported Bosniak aggressive actions beginning in 1991. According to this particular argument, Bosnian Serbs killed Bosniaks at Srebrenica not as part of a genocide but either (take your pick) as retaliation or to prevent future military actions by the said Bosniaks.
Blaming the Bosniaks for the atrocities committed against them is reminiscent of Joseph Goebbels’ justification of the Nazis’ anti-Jewish policies. Accusing Albert Einstein and the German Jewish writers Emil Ludwig and Lion Feuchtwanger of waging an “atrocity campaign” against Germany, Goebbels declared in April of 1933 that “the German nation was ready to leave [the Jewish] question in abeyance if Judaism will leave the German nation alone.”
Eight and a half years later, in November 1941 with the early stages of the Holocaust underway, Goebbels wrote in the weekly newspaper Das Reich:
If international finance Jewry should succeed in plunging the world into war once again, the result will be not the Bolshevization of the world and thereby the victory of the Jews, but rather the destruction of the Jewish race in Europe. . .. Every Jew is our enemy in this historic struggle, regardless of whether he vegetates in a Polish ghetto or carries on his parasitic existence in Berlin or Hamburg or blows the trumpets of war in New York or Washington. All Jews by virtue of their birth and their race are part of an international conspiracy against National Socialist Germany. . .. [W]e must win the war. If we lose it, these harmless-looking Jewish chaps would suddenly become raging wolves. They would attack our women and children to carry out revenge. . .. There is no turning back in our battle against the Jews — even if we wanted to, which we do not. The Jews must be removed from the German community, for they endanger our national unity.
This is precisely the type of obscene argument we see in the Greif Report as a subliminal justification for what occurred in Srebrenica: the Bosniaks brought the genocide (which the report denies was a genocide) on themselves – don’t blame Mladić, don’t blame Karadžić, don’t blame the Republika Srpska soldiers who shot thousands of unarmed men and boys to death. At its roots, blame the Bosniaks instead.
Adding insult to the considerable injury inherent in actually having to plow one’s way through the Greif Report is its reliance on avowed Srebrenica genocide deniers. The commission members seemingly went out of their way buttress their arguments with quotations from individuals who have made a career of playing in Republika Srpska’s nationalist ideological sandbox.
To give only one example: the Greif Report cites Andy Wilcoxson for the proposition that that the “number of prisoners that the Bosnian Serbs executed is about 3,900, which is less than half of the 8,000 that have been alleged.” (Greif Report, p. 671.) As far back as 2011, Wilcoxson wrote that “evidence supporting the [ICTY’s] finding of genocidal intent is weak to non-existent.” But wait, there’s more. Somehow, the authors of the report neglected to mention that Wilcoxson has called the ICTY “the brainchild of the U.S. State Department and the CIA.” According to Wilcoxson, “the United States has used the Tribunal to advance its interests in the Balkans. . .. A verdict from the ICTY has the same credibility and conflict of interest problems as a study on the health effects of smoking that’s published by an institution that gets funding from the tobacco companies.” Yet, Gideon Greif and the rest of the commission overlooked this particular nugget or failed to fully inform their readers of Wilcoxson’s viewpoint.
The Greif Report is now a permanent part of the brazen refusal by the Republika Srpska authorities to own up to the atrocities committed in their name. Interestingly, on July 23, the Associated Press reported that Valentin Inzko, the top international official in Bosnia under the Dayton Accords in his capacity as head of Bosnia’s Office of the High Representative, imposed changes “to the country’s criminal code, introducing prison sentences of up to five years for genocide denial and for the glorification of war criminals, including naming of streets or public institutions after them.”
In the end, the saving grace of the Greif Report is that it is drafted so abysmally badly that it will appeal only to other Srebrenica genocide deniers, which may in the end be the report’s only positive attribute.