The International Court of Justice (ICJ) in The Hague has decided that Serbia is not guilty of genocide in Bosnia and Herzegovina. “The Court establishes that Serbia has not committed genocide through its organs or persons whose acts engage its responsibility under customary international law or through violations of their obligations for prevention and punishment of the crime of genocide “, Rosalyn Higgins, the president of the ICJ, read from the ruling. (26-FEB-07)
This article draws upon a number of other articles, already published in both Bosnian and international news media. The editing and rewriting into one, new article for publication here has been done by HRH / Mirsad Pandzic.
Bosnia and Herzegovina filed the lawsuit in 1993 against Yugoslavia at the time with a request for this country to be proclaimed responsible for aggression against Bosnia and Herzegovina and genocide committed on its territory. A verdict in favour of the plaintiff could have opened a legal path for Bosnia and Herzegovina to claim several billion dollars of damages from Serbia. The motion of Bosnia and Herzegovina sent to the ICJ requesting ruling on whether Serbia had stood behind genocide, is the first case of a trial of one country for genocide since this act was defined as a legal category at the UN Convention in 1948, several years after the Nazi genocide against Jews. The Court refused to proclaim itself non-authorized for the lawsuit of Bosnia and Herzegovina against Serbia for genocide, and it confirmed its jurisdiction for this lawsuit, which was stated by the sued party. The president of the Court stated at the beginning that Serbia is the formal successor of Serbia-Montenegro and Yugoslavia, while Montenegro does not represent a successor of the community of states. Serbia has, unlike Montenegro, accepted the continuity from Serbia-Montenegro and the Federal Republic of Yugoslavia.
As stated by the Court president, it could not be established that the state bodies of the sued party, the former Federal Republic of Yugoslavia, had participated in Srebrenica genocide, where the Republika Srpska and the Army of Republika Srpska were not bodies of the Federal Republic of Yugoslavia. The Court did not have evidence that Ratko Mladic and other officers had been officers of the responsible party either, nor that Mladic was such an officer. There is no doubt that the Federal Republic of Yugoslavia had provided significant assistance to Republika Srpska, including payment of officers’ wages, but that, according to Higgins, does not make the latter “organs of the Federal Republic of Yugoslavia”. The Court decided that there had been no full dependence on the sued party at this time. Higgins said that significant assistance was coming from the Federal Republic of Yugoslavia to Republika Srpska during the war in Bosnia and Herzegovina, but that it was not proved that crimes in Srebrenica had been committed with funds received from the Federal Republic of Yugoslavia. Also, it was not established that the authorities of the Federal Republic of Yugoslavia had assisted the Republika Srpska bodies, when it was clear that genocide would take place or when genocide had started, Higgins said. As Higgins said in the first part of today’s reading of the verdict, the judges decided that there was no evidence that genocide had been committed on the whole territory of Bosnia and Herzegovina, but the position that genocide did in fact take place on the territory of Srebrenica in July 1995 was confirmed.
According to her, the International Court of Justice established that members of the Army of Republika Srpska did commit crimes in other parts of Bosnia and Herzegovina, but not genocide against Bosnian Muslims. “The Court did not find that mass murders had been committed with the intention to destroy Muslims as a national group”, the judge said. Referring to the execution of Bosnian detainees, which had been committed by members of a paramilitary unit from Serbia, the “Scorpions”, the Court decided that there was no evidence that this unit had been an organ of the Federal Republic of Yugoslavia, or that the crime was committed following orders of official Belgrade.
The highest court of the UN established also that “financial compensation would not be an appropriate means of reparation” for violated obligations, but that Bosnia and Herzegovina has the right to “a satisfaction”. According to the ruling, Serbia should extend “symbolic compensation” to Bosnia and Herzegovina and immediately establish full cooperation with The Hague Tribunal and extradite war crimes indictees, primarily Ratko Mladic. The Court made the same conclusion regarding expulsion, deportation, and destruction of Muslim cultural and religious objects, as previously stated in the Bosnian lawsuit.
Concerning the horrendous slaughter of around 8,000 victims in the Srebrenica region, who were killed in only several days of siege of this Bosnian town and after the fall into the hands of Bosnian Serbs in July 1995, the Court finds that Serbia had not done anything to prevent the slaughter. The proportions of this act are best demonstrated by the fact that the bodies of killed people, mostly non-Serbs, were found after the war at more than 80 locations of mass graves of Srebrenica victims.
The Court also decided that Serbia had not planned the genocide, or encouraged it, but that it was guilty of not doing everything in its power to prevent the genocide in Srebrenica. “This Court rules that Serbia is not an accomplice in genocide and that it therefore did not violate its obligations from the Convention on Prevention and Punishment of Genocide. With 12 votes “for” and three “against”, this Court rules that Serbia did violate the obligation to prevent the crime of genocide under the Convention, in the sense of genocide committed in Srebrenica in July 1995”. The Court found that, in July 1995, the political bodies of Republika Srpska, or the Army of Republika Srpska “could not be considered mere instruments of the Federal Republic of Yugoslavia, without any autonomy “.
The court decided that during the period of genocide in Srebrenica, the Federal Republic of Yugoslavia had been in the position to have influence over Bosnian Serbs, who had committed the genocide. Higgins said that the leadership of the Federal Republic of Yugoslavia could not but have been aware of a high risk prior to the events in Srebrenica, and that its bodies should have invested all efforts to prevent the tragic events. The leadership of the Federal Republic of Yugoslavia was fully aware of the atmosphere and hatred around Srebrenica, although it is unknown whether it was acquainted with the decision to commit of genocide.
Considering all activities and Milosevic’s observations with Mladic, it is clear that the leader at the time was aware of the danger. The leadership of the Federal Republic of Yugoslavia did not do anything to prevent genocide, claiming helplessness, which did not correspond with reality, Higgins said. The Federal Republic of Yugoslavia also violated obligations from the Convention referring to punishment for the act of genocide, especially because a few information suggest that Ratko Mladic had been on the territory of the sued party a number of times, but was not arrested. The sued party also violated its obligations by failure to implement provisional measures ordered by this Court in 1993, in order to prevent the crime of genocide. The Court ruled that Serbia must take measures for punishment for genocide and other acts from the Convention on Genocide, which includes cooperation with The Hague Tribunal.
Natasa Kandic (chairwoman of the Humanitarian Law Fund of Serbia and an honorary citizen of Sarajevo): “Evidence were not available and this was decisive for such a ruling. Although we know that those who survived know who participated in the war. The Serb strategy for concealment of evidence has proved to be efficient, so Serbia was only convicted for failure to prevent genocide. I personally believe that this is contrary to what had happened in the field”.
Carla del Ponte (chief prosecutor of the International Criminal Tribunal for Former Yugoslavia – ICTY): I am very happy, it said in the prosecutor’s statement. „Congratulations to ICJ for decision to at least call the massacre in Srebrenica a genocide. We are also satisfied that the massacre over 8,000 people and children in the Srebrenica enclave, which had been under protection of UN blue helmets, was proclaimed a genocide. We are happy that the ICJ criticized Belgrade for lack of full cooperation, and requested extradition of fugitives.”
Vuk Draskovic (Serbian foreign minister): “Objective and autopsy-like legal analysis of tragic war events in Bosnia and Herzegovina has demonstrated that genocide had been committed only in Srebrenica, and that Serbia and Montenegro were not responsible either for execution, or preparation of this big crime, or encouragement for this crime “. Serbia can be satisfied with the ruling of the International Court of Justice in The Hague, as it helped remove the genocidal stamp from the conscience of people in Serbia and Montenegro, on which the lawsuit of Bosnia and Herzegovina insisted, Draskovic said.
Andrej Nikolaidis (Montenegrin author and publicist): “The ruling opens up many issues. How could have Milosevic signed peace for the war in which, according to this verdict, Serbia did not participate? Why were sanctions imposed on Serbia, if it had not participated in the war? Why was Slobodan Milosevic arrested then?” According to him, it is good that Serbia was proclaimed responsible for some sort of a collaboration, i.e. failure to prevent crime.
Stjepan Mesic (Croatian president): “That genocide was committed in Srebrenica, everyone is clear with that, even judges of the International Court of Justice in The Hague. If 8,000 people are killed, if men older than 16 and 17 years of age are separated and executed within days, that cannot be anything else but genocide. At least this part of the ruling is definitely acceptable”.
Milorad Dodik (Premier of Republika Srpska): “The lawsuit of Bosnia and Herzegovina against Serbia and Montenegro remains illegal and illegitimate, as it has not reflected positions of the institutions of Bosnia and Herzegovina, while all our efforts to make this clear were fruitless. The result of all that is today’s ruling of the International Court of Justice in The Hague, which said that Serbia had not committed genocide.“ He stressed that Republika Srpska urges further cooperation and he apologized, on behalf of Republika Srpska and institutions, to all families of victims, but added that he expected the same thing to be done for Republika Srpska, as there were many victims there too. He said that the thesis on genocide is unsustainable, as this was not qualified by the Court of Justice, but taken over from verdicts of The Hague tribunal.
Dragan Popovic (Belgrade non-governmental organization Youth Initiative for Human Rights) said today that Serbia should have been convicted for genocide in Srebrenica. He added that he was “shocked by the verdict” and that “verdict is not in the interest of either Serbia or victims”. “I am very surprised by the contents of the ruling. I expected that Serbia would be convicted for genocide or collaboration in genocide “, Popovic said.
Boris Tadic (Serbian president): “It is very important for the National Assembly to urgently adopt a declaration and unambiguously condemn the crime committed in Srebrenica, which would mean execution of one part of today’s ruling. Now that we have seen the judicial epilogue of this tragic policy, it is perfectly clear that all those who oppose completion of cooperation with The Hague Tribunal and adoption of the Assembly declaration on Srebrenica, work directly against interests of their country and future of its citizens”.
Allan Little (BBC correspondent who reported from Sarajevo during the war in former Yugoslavia, also known as author of the documentary “The fall of Yugoslavia”): Little believes that no one who fully understands the dynamics of the four-year war in Bosnia and Herzegovina believes that the Serb government at the time, or its members were not “involved up to their necks in the events in Srebrenica “. “Surely, that is not the same as involvement of the STATE in genocide. The Court’s decision will, in my opinion, give enormous political encouragement to Serb nationalists, who will now be able to wash their hands of Srebrenica. This ruling is a dangerous step back, because it will quiet down the voices believing that it would be important for Serbia to admit and face crimes committed in the name of Serb people”, Alain Little said. He added, as reported by BBC, that the verdict would give a new force to those in Republika Srpska who support secession from Bosnia and Herzegovina and annexation to Serbia, and will undermine efforts of the current government in Belgrade to extradite Ratko Mladic to The Hague Tribunal.
Association of victims of genocide in Bosnia and Herzegovina (the association gathers a series of Bosnian non-governmental organizations and associations): The International Community does not want to look the truth in the eyes and is placing itself on the side of the aggressor, these were some of the first comments of representatives of the Association, who ask which additional evidence should have been presented for the Court to admit that Serbia and Montenegro had committed genocide. The victims of genocide are unhappy with the ruling of the International Court of Justice, members of the Association said.
Sulejman Tihic (chairman of Party of Democratic Action and former member of Bosnian Presidency): “I am satisfied with the fact that Yugoslavia, or the sued party, was proclaimed responsible for violation of the Convention on Prevention of Genocide, because it had not prevented it, while it could have prevented, stopped or weakened the genocide in Srebrenica. They are responsible for failing to punish the perpetrators, they are responsible for failing to cooperate with The Hague Tribunal, and they are responsible for failing to act upon the provisional measure of this court, which clearly said, in the provisional measure of 13 September 1993, that they had to do everything to prevent genocide in Bosnia and Herzegovina “, Tihic said. I am not satisfied with the fact that it was not established that Yugoslavia was the executor and directly responsible for the genocide.
Nebojsa Radmanovic (chairman of the Presidency of Bosnia and Herzegovina) said that the ruling of the International Court of Justice in The Hague in the lawsuit of Bosnia and Herzegovina against Serbia and Montenegro would cause disappointment and will increase tensions in Bosnia and Herzegovina. Radmanovic urged politicians and citizens to “calmly find a solution that will lead peaceful Bosnia and Herzegovina on the way to the European Union “. He assessed that “trust within Bosnia and Herzegovina and outside this country cannot be built on lawsuits and rulings, but in another way”, and he expressed hope that all in Bosnia and Herzegovina “will be able to calmly read the whole ruling and be able to build a happier future in a normal and calm way, overcoming the events of the past”. “It would be difficult to comment the ruling in this moment. I have to say that it was not even particularly clearly heard. Politicians can hardly comment on the ruling of the International Court of Justice”.
Haris Silajdzic (member of Presidency of Bosnia and Herzegovina): “It is a fact that the Court ruled that Serbia and Montenegro had violated the Convention on Prevention and Punishment of Genocide, and that they have to bear legal, political, moral and material responsibility for this.” As he added, this a verdict that is, in his view, incomplete, but which includes the fact that the Convention on Genocide had been violated. Good neighbourly relations, peace and democracy, according to him, can only built on truth and justice, not on incomplete information, half-truths and denial of genocide.
Zeljko Komsic (member of Presidency of Bosnia and Herzegovina) said that he was disappointed with the ruling of the International Court in The Hague in the Bosnian lawsuit against the Federal Republic of Yugoslavia. “I am not sure if this is a result of a lack of evidence or incorrect assessment. Genocide was committed in Bosnia and Herzegovina in 1992, all those who believe differently are evading the truth. I know what I will be teaching my child.”