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ICJ – POLITICS & JUSTICE DON’T MIX

March 6, 2007


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

  1. Shaina
    March 6, 2007 at 4:56 am

    The quote re: Mladic and Belgrade is certainly interesting; I only hope that sooner rather than later we will be able to hear the evidence of the links between Mladic and Serbia at Mladic’s trial at the Hague.

  2. From Peter Lippman
    March 23, 2007 at 8:04 pm

    I. The Decision

    Briefly, the ICJ decided that Serbia (taking the place of Serbia-Montenegro
    or the 3rd Yugoslavia, no longer existent) was not guilty of genocide in
    Bosnia, nor was it guilty of complicity in genocide. However, the court
    did find that Serbia was guilty of “failure to prevent genocide,” therefore
    in violation of the 1948 Genocide Convention. It further found that Serbia
    was guilty of failure to cooperate with the Hague war crimes tribunal (ICTY),
    and called on Serbia to fulfill its commitments in that realm (such as
    handing over Ratko Mladic). The finding also established that genocide was
    committed in Bosnia, but only in Srebrenica, and not throughout the rest
    of the war; also that it was institutions of the Serb-controlled entity,
    the Republika Srpska (RS), that were responsible for this genocide.

    This was a poor decision all around. There’s much that’s simply wrong.
    But while looking at what’s wrong with the decision, we also have to look
    at the way it’s to be interpreted, its effects on regional cooperation and
    inter-ethnic relations in Bosnia, and the meaning of the word “genocide.”

    The word “genocide” has long since been devalued, being generally used to
    mean “the worst thing possible.” If everyone from elementary school students
    to neighborhood associations use the word this way, it loses meaning.

    On the other hand, when the court now applies criteria for establishing
    genocide so strict as to make that establishment impossible, that also
    obviates any real meaning of the word. At this point we should ask, “How
    much difference then does it make, whether we use the buzz-word genocide, or
    something else, when crimes against humanity, violations of international law,
    and atrocities, all already describe the extremes of unacceptable behavior
    by a state or any other group?” Can there be such a lesser conception as
    Serbia “only” being guilty of supporting massacres?

    The main criterion found missing from the proof needed to convict Serbia
    of genocide, based on the wording of the 1948 Convention, was “intent.”
    The relevant wording of the Convention includes the “intent to destroy,
    in whole or in part, a national, ethnical, racial or religious group.”
    The government of Bosnia was apparently not able to supply concrete proof
    of Serbia’s intent, which would have had to take the shape of something
    like a letter from Milosevic to Mladic to kill Bosniaks (Bosnian Muslims)
    as a group, not just in order to remove them from a particular territory.
    There may well be proof that satisfies these standards, but the government
    of Serbia has not shared all its archives, and not even all the material
    evidence at the disposal of the ICTY was made available to the ICJ.

    There is plenty of other proof, but it requires a way of seeing, and perhaps
    political will, that were also not available to the ICJ. It goes like this:

    –The Serbian government provided the Bosnian Serb army (VRS) with crucial
    funds and logistical support from the beginning of the war to its end
    (actually, for many years after its end). This is well-documented. It is
    arguable that for much of the war, the VRS was a wing of the Serbian army.
    See “Mladic on Payroll Years after Indictment”
    http://www.globalpolicy.org/intljustice/wanted/2004/1203mladic.htm.
    also “Milosevic’s Last Waltz,”
    http://www.iht.com/articles/2007/03/12/opinion/webwedg.php,
    also “War Crimes and Individual Responsibility: A Prima Facie Case For The
    Indictment Of Slobodan Milosevic,” http://www.nesl.edu/center/balkan2.htm#Vb

    –The Bosnian Serb army systematically committed massacres directed at
    Bosniaks and other non-Serbs from the beginning of the war to the end. It
    has been argued that the purpose of these massacres was to clear territory,
    not to eliminate the “protected group” (here is where legalism becomes
    atrocious). But in any case, the way to conquer territory involved
    eliminating part of the protected group. This too is well-documented
    in, for example, Norman Cigar’s book, Genocide in Bosnia: The Policy of
    Ethnic Cleansing, and many other places.

    –The drive for expansion of territory controlled by Serbs was the
    result of a movement of extreme nationalism that began to be promoted by
    intellectuals and politicians in Serbia in the mid-1980s, and was exploited
    by Milosevic when he found it helpful to build and maintain his power base.
    The disintegration of former Yugoslavia and polarization of political forces
    into extreme nationalist camps, certainly in Bosnia as much as anywhere
    else, was a direct result of the belligerence of Milosevic’s nationalist
    movement. This polarization led to the atrocities mentioned above,
    of which the Bosniaks were the principal (though not the only) target.
    The amplification of extreme nationalist rhetoric and the trajectory of the
    movement are also recorded extensively. (See, for example, The Destruction
    of Yugoslavia: Tracking the Breakup 1980-92, by Branka Magas, and Broken
    Bonds: The Disintegration of Yugoslavia by Lenard J. Cohen, among many
    other sources)

    Given that the extremist movement started in Serbia and its Bosnian
    extension was made possible by the government of Serbia (then Yugoslavia),
    it doesn’t require a leap of logic to conclude that Serbia was responsible
    for genocide in Bosnia. One clear illustration of this is found in Richard
    Holbrooke’s To End a War, in which he describes meetings with Milosevic,
    wherein Milosevic has ready contact with Mladic and Karadzic, and is able
    to twist their arms to arrive at agreements. This relationship between the
    Serbian ruler and the Bosnian Serb leaders lasted until the end of the war
    and beyond.

    Furthermore, the ICJ decision states that Serbia had “influence,” but
    not “control,” over the army of Republika Srpska and should have been able
    to surmise that there could be genocide in Srebrenica. The court concluded
    that given these conditions, Serbia should have prevented genocide and failed
    to do so. I’m not an expert in war law and conventions, but I’m aware that
    when a war crime is committed, a commander can be found guilty, even if he
    had not been present, of “command responsibility.” The Serbian government,
    by the same token, should have been found to have responsibility for the
    atrocities in Bosnia.

    II. Impact

    The people this decision hurts most are, naturally, the survivors of the
    genocide. One widow from Srebrenica said, “We have been murdered again.”
    Others spoke of betrayal, saying the decision proves that justice does not
    exist, and that “denial is the final stage of genocide.”*

    Nor does the decision particularly help the Serbs as a people, even
    though their politicians eagerly claimed a victory. In fact, leaders on
    all sides were ready to claim victory and instrumentalize the mixed verdict.
    This would have happened in any case; if found guilty of genocide, Serbian
    leaders would have summoned their mythology of victimization (in mentioning
    this, I’m not implying that there has been no victimization of Serbs) in
    order to reinforce their own political standing by circling the wagons
    and pointing to a “politicized court” as inherently biased against Serbs.
    Instead, the ICJ finding is a convenient way for Serbs to buttress
    their self-exoneration and avoid responsibility for war crimes.

    On the other side, Bosniak politicians after the ICJ decision hastened
    to call for the abolition of the Republika Srpska. The logic is that since
    the ICJ finding allows that the VRS committed genocide, therefore the RS
    is an entity created by genocide, and as such must be abolished. This is
    an appealing logic but, while it could constitute a large step towards the
    “absolute justice” mentioned above, it is all but impossible to achieve
    at this point. Sadly, the main proponents of this line, including Haris
    Silajdzic (Bosniak member of Bosnia’s three-part presidency) are much
    more motivated to reinforce their own popularity than to establish truth,
    justice, or reconciliation in Bosnia. The response to this discourse on
    the Serb side is to deny “collective guilt” for war crimes and, eventually,
    to call for a referendum to secede from Bosnia.

    The ICJ decision does point to the Republika Srpska as guilty of genocide
    in Srebrenica, drawing on and backing up earlier findings of the ICTY.
    This halfway decision, leaving out other instances of genocide in Bosnia,
    nevertheless understandably makes the leaders of that para-state
    uncomfortable. Their prime minister, Milorad Dodik, responds by
    saying what he knows his constituency wants to hear, that genocide was
    not committed in Srebrenica — or that the RS was not responsible for
    whatever did happen, only “some elements of the army” were responsible.

    It’s a stretch to think that a guilty conviction would have helped Serbs
    initiate a process of “de-Nazification” (examination of Serb responsibility
    for war crimes) but the present decision certainly won’t help. There will be
    continued anger on the part of traumatized victims, and tension among
    ethnicities in Bosnia. Some commentators say that “history will decide”
    what really happened, and where the real responsibility for the crimes lies.
    But court decisions are an important part of the historical record, and
    that’s why the ICTY is so important. It is a tragedy that that court botched
    the trial of Milosevic by allowing it to become, predominantly, a stage
    for his grandstanding to the folks back home. This allowed the proceedings
    to drag on for four years, until Milosevic died.

    Zeljko Komsic, Croat member of the Bosnian presidency, says, “I know
    what happened, and I know what I will teach my children.” But he won’t be
    teaching everybody’s children.

    People in the West who have cared a lot about the fate of ex-Yugoslavia
    have desperately wanted Bosnia to be put back together. For recovery
    and reconciliation to happen, truth and justice are not platitudes, but
    necessary prerequisites. Given what’s happening now, we should think about
    what happens when a vast crime is committed and there’s no justice. There
    are, of course, plenty of examples. Let’s take Poland. Not only were most
    of the Jews (and vast numbers of Poles) exterminated in World War II, but
    the country was also made empty of most Ukrainians, Roma, Byelorussians,
    Tatars, etc. For the first time ever, Poland was all but ethnically
    homogenized. Now anyone who knows some of this history, and goes to Poland,
    cannot quite be a tourist, because of the ghosts that abound. No apology,
    no reparation, no return, no justice, and no reconciliation have taken
    place in Poland. But will people live “normally?” Will they be healthy,
    spiritually? I doubt it. The legacy of crime on a large scale does not
    disappear, but manifests itself in fear, hate, paranoia, guilt, and
    spiritual impoverishment — especially the latter.

    What goes around comes around, and it will be coming around for a long time
    in Serbia and Bosnia.

    As with practically every problem in Bosnia, ultimately the real solution
    in the search for justice is for ordinary people on the grassroots level
    to organize and work on educating their public, and there’s more of this
    these days than there was before the war or soon after. Unfortunately,
    this has different dynamics in a small country historically buffeted by
    surrounding powers than it does in the United States, because the forces
    that decide people’s fate in Bosnia are, historically, far away and hard
    to affect. But it’s the only hope.

    ~~

    *What is, in fact, the last stage of genocide? There is so much that
    takes place in the course of the attempted extermination of a people
    and their culture that probably simply can’t be encoded in law: the
    extermination of a people’s spiritual roots in Bosnia has encouraged
    a kitschy fundamentalist version of Islam; this could be last stage
    of genocide. Or what about the boutique-ification of a culture, such as
    the sentimental/New Age purveying of Native American customs, and the
    Jewish restaurants in Krakow run by non-Jews? How much can international
    lawyers know about these things? Only the ordinary people, survivors
    who lived their culture, can sense this.

    Taking the discussion of the results of genocide further, something else
    on a par with that crime took place in Bosnia, but for which there’s
    no international law: the destruction of Bosnian multi-culturalism.
    At least for now, Bosnia and Herzegovina as a multi-ethnic society
    no longer exists, and there are attempts in many communities, on all
    three sides, to erase the remnants of the rich mix of cultures that
    was Bosnia’s historical treasure. Bijeljina, where the street names
    have been changed and even the regional museum has been “cleansed,”
    is a good example of this. Bijeljina now feels like a suburb of Belgrade.
    More was destroyed than Bosniak communities; some Bosniaks (especially
    part of the political infrastructure), in response to their victimization
    by extremists, now participate in shunning multi-ethnicity and co-existence.
    Those who try to hold on to a vestige of co-existence stand out from the
    norm and look unbalanced. The ICJ decision, increasing the anger on the
    side of victims and exonerating the guilty, doesn’t help any of this.

    For some material on genocide, see the following links:

    http://news.bbc.co.uk/2/hi/europe/1701562.stm
    Discussion of background of Genocide Convention and legal implications

    http://www.ippnw.org/MGS/V6N1Burkhalter.html
    Discussion of intervention in cases of genocide; includes excerpts
    from the Genocide Convention

  3. Anonymous
    May 25, 2007 at 9:28 am

    Calling the ICJs judgement “politicized” recalls similar comments made by Bosnian Serb commentators regarding the ICTY.

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