ICJ - POLITICS & JUSTICE DON'T MIX

Our Editorial Analysis of ICJ's Recent Ruling: Bosnia vs Serbia

1. Lack of evidence does not absolve Serbia from direct responsibility for Genocide; ICJ's politicized / compromised verdict will collapse under the burden of proof.

2. ICTY Prosecutor, Carla Del Ponte - evidence for Serbia's direct involvement in genocide exists and will be used in case against Ratko Mladic, when he is brought to justice; the international conflict, Serbia vs Bosnia, proven at least 5 times.

3. The judges had demanded an unrealistically high standard of proof against Serbia in a clearly compromised ruling which awarded perpetrators of war in Bosnia.

4. Law against Srebrenica genocide denial sought in Bosnia, while Bosnian and Serbian politicians continue to deny Srebrenica Genocide.

5. ICJ's verdict is not final. Bosnia-Herzegovina has a legal right to restart proceedings against Serbia with new evidence.

6. Mothers of Srebrenica Genocide victims condemn UN Chief Prosecutor for making deal with Belgrade, which prevented key evidence linking Belgrade with direct responsibility for Genocide to be used during ICJ proceedings against Serbia.

On February 26, the International Court of Justice (ICJ) in The Hague found that Serbia has violated its obligation under the Genocide Convention to prevent genocide in Srebrenica and that it has also violated its obligations under the Convention by having failed fully to co-operate with the International Criminal Court. The ICJ also surprisingly ruled there was not enough evidence to prove Serbia's responsibility for genocide during the Bosnian war.

Serbia, in its defense brief, argued that the Genocide Convention does not provide for the responsibility of states for acts of genocide. But on this key point, the ICJ ruled against Belgrade. This is the first time that an international court ruled that a state can – in fact - commit genocide.

ICJ also ruled that genocide did occur at Srebrenica, when over 8,000 Bosniak men and underage children were massacred in 1995, at the hands of the Bosnian Serb Army (VRS) who was supported by Belgrade, both financially, politically, and militarily. Unlike in World War II with regard to Europe's Jews, there was no Wannsee Conference in Belgrade to decide on the implementation of a "final solution" for Bosniaks. Or if there was, the evidence was apparently missing or not presented to the ICJ. Paper trail is easy to destroy. All it takes is a paper-shredding machine. As one Serbian friend of our blog pointed out to us in his email correspondence: “There was more than enough time for Serbia to destroy evidence linking her to direct responsibility for Genocide.”

On February 15, 2007 - Chief UN War Crimes Prosecutor, Carla Del Ponte, made a very important statement about (still unused) evidence linking Belgrade with direct responsibility for genocide, quote:

"You may wonder why my office is so keen to have access to the personnel file and full record for Ratko Mladić? Because the file can speak for itself and show that Ratko Mladić was not an outcast, not a lunatic who went on a rampage in Bosnia to fulfill his crazy ideas. No. He was a senior officer of the Yugoslav army on duty in Bosnia as commander of VRS; he was promoted twice during the war with highest marks in his dossier, the full approval of the Belgrade military and political leadership and with very generous remuneration. If, for a moment, you combine this with the facts from the ground, known to the whole world, and reported to Belgrade - you have the fact established beyond any doubt - and that is that Belgrade was directly involved in the war in Bosnia. And later? Belgrade organized comfortable hiding places for Ratko Mladić in Serbia, so he can evade international justice. And where he is now? He is still in Serbia. Nothing was done to stop Mladić or his associates; nothing was done to punish him or his associates."

As Martin Shaw (professor of international relations and politics at the University of Sussex, where he teaches on the MA in war, violence and security) concluded:

“The world court's decision to clear Serbia of genocide in Bosnia is an exercise in denial.... The international court of justice judgment on Serbia's role in Bosnia is narrow, conservative and perverse.... Yet the court immediately adds: 'It is true that there is much evidence of direct or indirect participation by the official army of the FRY, along with the Bosnian Serb armed forces, in military operations in Bosnia and Herzegovina in the years prior to the events at Srebrenica.' If those operations did not involve genocide, as the court rules, the Serbian-Yugoslav army and state could not have been guilty of participation in it.... The court therefore limits Serbia's guilt to its failure to try to prevent the genocidal massacre taking place, and to help apprehend the perpetrator, Ratko Mladic, indicted by the ICTY. The former is a curious finding, since if Serbian leaders were really in a position to influence the Bosnian-Serbian army not to massacre the Muslim men of Srebrenica, that implies a degree of knowledge and influence that suggests complicity in the massacre - something which the Court denies.” (Sources: OpenDemocracy.net and The Guardian)

As Dr. Sahib Mustaqim Bleher - in his Genocide Politics op/ed - pointed out:

“For the court to find that Serbia was responsible for the horrible crimes committed during the Bosnian conflict and that reparations were to be paid would set a dagerous precedent under which reparations might subsequently also be sought by the Palestinians or Lebanese against the State of Israel or Iraqis and Afghans against the US and UK. To ignore the evidence of a genocide, on the other hand, would give a green light to any group of people furthering their political agenda through the use of terror. As courts frequently do, the International Court of Justice came up with a compromise. They declared that the massacre of Bosniaks at Srebrenica (under the “watchful” eyes of UN observers, by the way) was genocide, but that Serbia was not directly responsible as a state. They found that Serbia didn't do enough to stop genocide from happening, but found no evidence that they directly ordered the crime. The countries dominating the UN may have saved their own skin by this ruling, but it compounds an already complex issue even further.”

Genocide is not a question of how many people died during war - it's rather a question of do those responsible for killings have a specific intent to destroy a specific ethnic or religious group, which is extremely complicated to prove on an individual level and almost impossible to prove on a state level.

The ICTY never got round to dealing with the question of whether rump Yugoslavia was responsible for the genocide, mainly because the key figure, former President Milosevic, died before his trial ended. According to the statement by Chief UN War Crimes Prosecutor, Carla Del Ponte, to the Security Council on June 7 2006, the Prosecution has proven an international armed conflict in Bosnia-Herzegovina no less than five times.

The judges refused to declare Serbia, whose late President Slobodan Milosevic paid and directed the Serb forces, guilty of genocide because they did not have absolute proof that Serbia had ordered the killings. Had the late Slobodan Milosevic been convicted of any of 66 counts of genocide and crimes against humanity by the International Criminal Tribunal at The Hague, a key link tying Belgrade to a policy of genocide in Bosnia might have been established. But since Milosevic cheated justice by dying in March 2006 with his trial incomplete, there was no time to convict him.

The international community could just as easily be found guilty of failing to prevent Genocide in Srebrenica (but they appear to have immunity); particularly the Netherlands, whose soldiers were charged with securing the safety of the civilians of Srebrenica, which was declared by the UN in 1993 as a safe haven and demilitarized zone. Instead, the soldiers were overtaken by Bosnian Serb forces, disarmed and made to watch as the men and boys were separated from the women and taken off to be summarily executed. The Dutch soldiers were later awarded medals by their government for their courage in battle.

A former chief judge of the U.N.'s Yugoslavia tribunal and later the chairperson of the United Nations International Commission of Inquiry on Darfur, Antonio Cassese, immediately protested the ICJ's decision in London's The Guardian by reminding the Court that:

"...the massacre was prepared in detail and took place over the course of six days (between July 13 and 19). Is it plausible that the Serbian authorities remained in the dark while the killing was in progress and reported in the press all over the world? It seems far more reasonable to believe that Serbia's leaders were informed about what was going on, and that, despite this, Serbia's military, financial and political assistance to Mladic was never interrupted."

Antonio Cassese argued that the judges had demanded an "unrealistically high standard of proof" before finding Serbia "legally complicit" in the genocide of Srebrenica. In his separate response in The Guardian, he pointed out:

"As the court's vice-president said in his dissenting opinion: 'The court refused to infer genocide from a 'consistent pattern of conduct', disregarding in this respect a rich and relevant jurisprudence of other courts.'"

There were eyewitness of many trucks loaded with weapons that were coming from Serbia to the ethnically clean territory controlled by Bosnian Serbs forces. The video picture that shows the killing of Srebrenica civilians by the Serbian Special Forces (the Scorpions) could not be accepted as the evidence because Serbian leaders declared that the Scorpions were a paramilitary group that were not supported from Serbian state institutions (pretty lame excuse that worked). In 1999, the Scorpions were absorbed into the anti-terror unit of the Serbian Interior Ministry - an important fact in light of the court's apparent lack of evidence. Ratko Mladic, war-time General in Bosnian Serb Army that occupied Srebrenica at July 1995, was on the salary list of the Serbian Ministry of Defense until 2005 – interestingly, this was not a quite valid evidence of Serbian involvement in the Srebrenica Genocide.

The court ordered Serbia to issue a parliamentary declaration condemning the Srebrenica massacre, and to step up the effort to arrest Mladic. Serbia is unlikely to meet any of those court orders satisfactorily, especially with Srebrenica genocide denial being promoted on a state level. The country's President, Boris Tadic, has urged the parliament to pass a motion condemning the Srebrenica massacre but the far-right Serbian Radical party, which won a third of the vote at the last month's elections, claims that the Srebrenica genocide is an invention of Serbia's enemies and has vowed to block any motion to condemn it. The Serbian Republic's Prime Minister Milorad Dodik has also stated that Srebrenica massacre "was not a genocide, although it was a terrible crime."

Based on the Court's judgement, there is little hope that current allegations of genocide in Darfur and long time allegations of genocide in Armenia could be proven against the governments of Sudan and Turkey.

Survivors of genocide responded to ICJ's ruling by holding peaceful demonstrations in Sarajevo and other cities of Bosnia-Herzegovina, including Zagreb (Croatia) and Hague (Netherlands).

“Had we, Muslims, been Christians, neither the aggression nor the genocide would have happened to us!” said Bakira Hasecic, rape victim and the president of NGO Women Victims of War.

Survivors sought creation of laws that would criminalize Srebrenica Genocide denial – which is widespread in Serb-part of Bosnia-Herzegovina and even promoted by high-level Serbian and Bosnian-Serb politicians and leaders, most notably Republika Srpska's Prime Minister Milorad Dodik and Serbian government ultra-nationalist politicians.

Victims of genocide also sought proclamation of Srebrenica and Zepa as special political districts, which would not belong to the Bosnian Serb entity, where genocide was committed. They also sought abolishment of Bosnian Serb entity which was founded on ethnic cleansing and genocide of Bosniak pre-war majority.

It is no coincidence that the international community seeks to appease Belgrade in advance of its planned announcement of independence for Kosovo, for which it needs at least a quiet nod from Serbian authorities. It was just another in a series of compromises in the context of political appeasements. Earlier this month, the EU announced that it would restart integration talks with Serbia despite the fact that Belgrade has not demonstrated a willingness to cooperate with the UN's war crimes tribunal.

Legal representative of Bosnia-Herzegovina, Sakib Softic, was a bit more optimistic by stating for Banja Luka Nezavisne that:

"We don't have to be disapointed as a result of ICJ judgment. First time in the history of the world, one state has been found legally responsible for violating Convention on the Prevention and Punishment of the Crime of Genocide. In case we collect new evidence that proves Serbia had an intention to committ genocide, we have a period of 10 years to start new proceedings at the ICJ."

As a result, mothers of Srebrenica Genocide victims who are active in the NGO Association Women of Srebrenica condemned Chief UN Prosecutor, Carla Del Ponte, for making deal with Belgrade in which key evidence linking Belgrade with direct responsibility for Srebrenica Genocide could not be used during ICJ proceedings against Serbia. They stated that Carla Del Ponte and the Hague Judges deserve their place at the Wall of Shame that is planned to be built next Srebrenica Genocide Memorial in Potocari. (sources: Avaz, March 2nd, 2007)

Chicago-based association, Answer to Genocide, recommended February 26 to be marked as the World's Day of Shame.

Read more:

1. ICJ Rules Serbia Guilty of Not Preventing Genocide
2. ICJ Ruling - Bosnia vs Serbia, Dangerous Precedent
3. ICJ - Perverse Judgment