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ICTY: BOSNIAN SERBS WERE UNDER CONTROL OF BELGRADE

March 5, 2008
The Incompetence of Bosnia’s Legal Team Saved Serbia from Conviction on All Counts at the International Court of Justice

Update note, March 10, 2008: Thank you for your comments. I am moving excerpts of Owen’s comment (quoting the Judge Al-Khasawneh) on top:

“The ‘effective control’ test for attribution established in the Nicaragua case is not suitable to questions of State responsibility for international crimes committed with a common purpose. The ‘overall control’ test for attribution established in the Tadić case is more appropriate when the commission of international crimes is the common objective of the controlling State and the non-State actors. The Court’s refusal to infer genocidal intent from a consistent pattern of conduct in Bosnia and Herzegovina is inconsistent with the established jurisprudence of the ICTY. The FRY’s knowledge of the genocide set to unfold in Srebrenica is clearly established. The Court should have treated the Scorpions as a de jure organ of the FRY. The statement by the Serbian Council of Ministers in response to the massacre of Muslim men by the Scorpions amounted to an admission of responsibility. The Court failed to appreciate the definitional complexity of the crime of genocide and to assess the facts before it accordingly.”

Recently, Slobodan Kostic, a Serbian journalist from Belgrade, wrote an excellent article for IWPR titled How Belgrade Escaped Genocide Charge.

The article details some of the steps Serbia took to successfully block the International Criminal Tribunal for the former Yugoslavia from disclosing extremely sensitive transcripts of meetings the Serbian Supreme Defence Council held between 1992 and 1995.

As Slobodan Kostic points out and we agree with him, quote:


“It is widely believed that the transcripts, which record the meetings of top officials, contain evidence of Belgrade’s direct involvement in the wars in Croatia and Bosnia in the 1990s.”

In a case of Bosnia vs Serbia, the International Court of Justice (ICJ) found Serbia liable for violating the obligation to prevent genocide, under the Convention on the Prevention and Punishment of the Crime of Genocide, in respect of the genocide that occurred in Srebrenica in July 1995. The same Court found Serbia not to be directly liable for Srebrenica genocide and shifted responsibility for the Genocide to the Government of Republika Srpska (Serb-controlled portion of Bosnia-Herzegovina).


PHOTO CAPTION: Photos of the Srebrenica Genocide billboard in Belgrade vandalized with the message threatening a repeat of Srebrenica genocide: ‘There’s going to be a rerun’.

The question remains: If one day victims get their way and Serbia makes sensitive transcripts public, will the authenticity of these transcripts be compromised in the meantime? After all, Serbia had plenty of time to forge whatever documents they wished. What stops Serbia and Republika Srpska from forging military orders so they comply with Geneva Convention?

It is important to note – and most people don’t realize this fact – the Prosecution at the International Criminal Tribunal proved an international armed conflict in Bosnia and Herzegovina no less than five times, confirming Serbia’s direct involvement in a full blown international attack on Bosnia-Herzegovina. Here is an excerpt of ICTY judgment confirming Belgrade’s full control over Bosnian Serbs (financial, logistical, and more importantly in direction, coordination and supervision of the activities of the Serb Army, VRS):

Tadic, (Appeals Chamber), July 15, 1999, paras. 156, 162: “It is sufficient to show that [the Yugoslav Army] exercised overall control over the Bosnian Serb Forces. Such control manifested itself not only in financial, logistical and other assistance and support, but also, and more importantly, in terms of participation in the general direction, coordination and supervision of the activities and operations of the VRS [the Army ofthe Serbian Republic of Bosnia and Herzegovina/Republika Srpska]. This sort of control is sufficient for the purposes of the legal criteria required by international law.” “[F]or the period material to this case (1992), the armed forces of the Republika Srpska were to be regarded as acting under the overall control of and on behalf of the FRY [the Federal Republic of Yugoslavia (Serbia and Montenegro)]. Hence, even after 19 May 1992 the armed conflict in Bosnia and Herzegovina between the Bosnian Serbs and the central authorities of Bosnia and Herzegovina must be classified as an international armed conflict.” See also Tadic, (Appeals Chamber), July 15, 1999, para. 87. [read more…]

The legal team of Bosnia-Herzegovina had all the tools at their disposal to win the full judgment against Serbia, but what they lacked was wisdom and intelligence to present the case properly. For example, they could more aggressively object courts’ refusal to use the ‘overall control’ test for attribution established in the Tadić case.

Nevertheless, there was Genocide in Bosnia. While ICJ confirmed Srebrenica genocide, another European Court handed down Bosnian genocide judgment. It should be noted that on September 26th 1997, Germany handed down the first Bosnian Genocide conviction to Serb soldier Nikola Jorgic for crimes committed in Bosnia-Herzegovina. In reviewing the case in the judgement of Nikola Jorgic v. Germany on 12 July 2007 the European Court of Human Rights upheld Bosnian Genocide conviction.

  1. Anonymous
    March 5, 2008 at 6:21 pm

    Why not start a new trial?

  2. Owen
    March 6, 2008 at 12:31 am

    The judgment can only be reviewed if new evidence is produced. I’m not a legal expert but I would think that because the Tadic ruling was already available to the Bosnian case it wouldn’t be considered new evidence.

    Hope for a new hearing rests on previously unavailable evidence such as the Supreme Defence Council records.

  3. Owen
    March 6, 2008 at 10:24 am

    The Tadic case ruling was in fact looked at by the ICJ. In Judge Al-Khasawneh’s dissenting opinion he argues that the majority applied the wrong criteria to its evaluation of the applicability of the findings in the Tadic case.

    “The “effective control” test for attribution established in the Nicaragua case is not suitable to questions of State responsibility for international crimes committed with a common purpose. The overall control” test for attribution established in the Tadić case is more appropriate when the commission of international crimes is the common objective of the controlling State and the non-State actors”

    http://www.icj-cij.org/docket/files/91/13689.pdf.

    So it seems that it wasn’t the Bosnian legal team’s fault that the ICTY’s findings didn’t determine the outcome of the case.

    Al-Khasawneh dissents from the majority opinion on a number of significant points – he summed these up as:
    “Serbia’s involvement, as a principal actor or accomplice, in the genocide that took place in Srebrenica is supported by massive and compelling evidence. Disagreement with the Court’s methodology for appreciating the facts and drawing inferences therefrom. The Court should have required the Respondent to provide unedited copies of its Supreme Defence Council documents, failing which, the Court should have allowed a more liberal recourse to inference. The “effective control” test for attribution established in the Nicaragua case is not suitable to questions of State responsibility for international crimes committed with a common purpose. The “overall control” test for attribution established in the Tadić case is more appropriate when the commission of international crimes is the common objective of the controlling State and the non-State actors. The Court’s refusal to infer genocidal intent from a consistent pattern of conduct in Bosnia and Herzegovina is inconsistent with the established jurisprudence of the ICTY. The FRY’s knowledge of the genocide set to unfold in Srebrenica is clearly established. The Court should have treated the Scorpions as a de jure organ of the FRY. The statement by the Serbian Council of Ministers in response to the massacre of Muslim men by the Scorpions amounted to an admission of responsibility. The Court failed to appreciate the definitional complexity of the crime of genocide and to assess the facts before it accordingly.”

    The Nicaragua v. United States case is part of the ICJ’s own jurisprudence which is where part of the problem may lie.

  4. Vehid
    March 8, 2008 at 3:16 pm

    Fortunately, there are still legal tools to reactivate the process Bosnia vs. Serbia at ICJ. What we are missing right now is political will and determination to initiate and lead this process. Since we know only an institution can achieve this goal, it is necessary to establish “Institute of Genocide” to manage this process. I encourage this tought.

  5. Owen
    March 9, 2008 at 10:18 am

    Dan, in the light of Al-Khasawneh’s opinion you owe it to the Bosnian legal team either to provide further justification for the charge of incompetence or to withdraw it.

  6. Anonymous
    March 10, 2008 at 12:53 pm

    There is new evidance but it has to be presented to the court.
    In 1995 Karadzic and Martic used biological weapons against civilians in Bihac-pocket.^trucks with food were poisoned to exterminate muslims there(about 20.000 refugees)
    Operations were called Mac 1 i Mac 2.
    I hope they present it to the court.

  7. Srebrenica Genocide Blog Editor
    March 10, 2008 at 7:55 pm

    Owen, I still believe they could have done more.

    why Bosnia’s legal team weren’t more aggressive in objecting courts’ refusal to use the ‘overall control’ test for attribution established in the Tadić case?

    Even if Serbia releases Defence transcripts, where is the guarantee of their validity? After all, Serbia had plenty of time to forge whatever documents they wished.

  8. Alison
    March 11, 2008 at 1:13 am

    It is dissapointing that the court did not have access to all the evidence which could have proven whether Serbia participated in genocide. The case was a departure for the ICJ which normally rules on more arcane topics, such as territorial disputes between nations or disputes about treaties.

    Had the late Slobodan Milosevic, who was Serbia’s president at the time, been convicted of genocide by the international criminal tribunal at The Hague, a key link tying Belgrade to a policy of genocide in Bosnia might have been established.

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