Bosnian genocide case at the International Court of Justice

Dissenting opinion

Vice-President of the International Court of Justice, Judge Al-Khasawneh, sharply dissented:

Analysis

Serbia's violations of its obligations stem not only from the Convention on the Prevention and Punishment of the Crime of Genocide but also from two "provisional protective measures" issued by the International Court of Justice in April and September 1993. The then Federal Republic of Yugoslavia was ordered explicitly "to do everything in its power to prevent the crimes of genocide and to make sure that such crimes are not committed by military or paramilitary formations operating under its control or with its support." The judges concluded that despite this explicit order, Serbia did nothing in July 1995 to prevent the Srebrenica massacre, although it “should normally have been aware of the serious danger that acts of genocide would be committed.”

In reaching this decision, the court referred to the standard set by Nicaragua v. United States, in which the United States

United States

The United States of America is a federal constitutional republic comprising fifty states and a federal district...

was found not to be legally responsible for the actions of the Contra guerillas

Contras

The contras is a label given to the various rebel groups opposing Nicaragua's FSLN Sandinista Junta of National Reconstruction government following the July 1979 overthrow of Anastasio Somoza Debayle's dictatorship...

despite their common goal and widely-publicised support

Iran-Contra Affair

The Iran–Contra affair , also referred to as Irangate, Contragate or Iran-Contra-Gate, was a political scandal in the United States that came to light in November 1986. During the Reagan administration, senior Reagan administration officials and President Reagan secretly facilitated the sale of...

.

Furthermore, according to the ICJ’s judgement ‘it is established by overwhelming evidence that massive killings in specific areas and detention camps throughout the territory of Bosnia-Herzegovina were perpetrated during the conflict’ and that ‘the victims were in large majority members of the protected group, the Bosniaks

Bosniaks

The Bosniaks or Bosniacs are a South Slavic ethnic group, living mainly in Bosnia and Herzegovina, with a smaller minority also present in other lands of the Balkan Peninsula especially in Serbia, Montenegro and Croatia...

, which suggests that they may have been systematically targeted by the killings.’ Moreover, ‘it has been established by fully conclusive evidence that members of the protected group were systematically victims of massive mistreatment, beatings, rape and torture causing serious bodily and mental harm, during the conflict and, in particular, in the detention camps.’ The Court accepted that these acts, on the part of the Serb forces, had been committed, but that there was inconclusive evidence of the specific intent to destroy the Bosniaks as a group in whole or in part. This includes the period up to 19 May 1992, when Bosnian Serb forces were under the formal control of the Federal Republic of Yugoslavia.

ICJ President Rosalyn Higgins

Rosalyn Higgins

Dame Rosalyn Higgins, DBE, QC is the former President of the International Court of Justice. Higgins was the first female judge to be appointed to the ICJ, and was elected President in 2006. Her term of office expired on 6 February 2009...

noted that while there was substantial evidence of events in Bosnia and Herzegovina that may amount to war crimes or crimes against humanity, the Court had no jurisdiction to make findings in that regard, because the case dealt "exclusively with genocide in a limited legal sense and not in the broader sense sometimes given to this term."

The Court further decided that, following Montenegro's declaration of independence in May 2006, Serbia, Serbia and Montenegro's successor, was the only Respondent party in the case, but that "any responsibility for past events involved at the relevant time the composite State of Serbia and Montenegro".

In reviewing the case in the judgement of Jorgic v. Germany on 12 July 2007 the European Court of Human Rights

European Court of Human Rights

The European Court of Human Rights in Strasbourg is a supra-national court established by the European Convention on Human Rights and hears complaints that a contracting state has violated the human rights enshrined in the Convention and its protocols. Complaints can be brought by individuals or...

selectively quoted from the ICJ ruling on the Bosnian Genocide Case to explain that ethnic cleansing

Ethnic cleansing

Ethnic cleansing is a purposeful policy designed by one ethnic or religious group to remove by violent and terror-inspiring means the civilian population of another ethnic orreligious group from certain geographic areas....

was not enough on its own to establish that a genocide had occurred:

Criticism of the ICJ Judgement

The Court's opinion that genocide did not take place across the entire occupied territory of Bosnia-Herzegovina and its finding that Serbia was not directly involved in the Srebrenica genocide have been strongly criticized. Prof. Yuval Shany, Hersch Lauterpacht Professor of Public International Law at the Hebrew
University of Jerusalem described the Court's conclusions on the three questions before it as anything but uncontroversial.

First, as far as the jurisdictional part of the decision goes, the court has been severely criticized for unjustifiably over-stretching the concept of res judicata to decisions on jurisdiction rendered at an earlier stage of the same proceedings; for over-relying on legal conclusions that were decided at earlier stages without serious consideration; and for narrowly construing its powers of revision.Indeed, seven out of the fifteen judges on the bench expressed varying degrees of unease with this particular outcome.

Second, as for the actual findings on the commission of genocide, some writers have criticized the court for refusing to look at the ‘bigger picture’ of the events in Bosnia – a picture that seems to suggest that the various atrocious crimes meted out by the Bosnian-Serbs were all part of the same ‘master-plan’ of creating an ethnically homogeneous Serbian state. Others have questioned the court’s readiness to rely on the absence of individual convictions in genocide by the ICTY (except with relation to the massacre in Srebrenica), without properly considering the difference between standards of liability under criminal law and state responsibility or fully appreciating the limited probative value of reduced charges as the result of plea bargains.

Third, with respect to the question of Serbian responsibility, the court’s legal analysis of attribution standards, the reluctance to find Serbia to be an accomplice to genocide, and the decision to refrain from ordering reparations, have all been criticized as excessively conservative. At the same time, the court’s expansive reading of Article 1 of the Genocide Convention as potentially imposing on all states a duty to prevent genocide, even if committed outside their territory, has been noted for its remarkable boldness. Still, some writers have criticized the court for not clarifying whether Article 1 can provide an independent basis for exercising of universal jurisdiction against individual perpetrators of genocide.(28) So, arguably, the court construed broadly the duty to prevent genocide while narrowly construing the duty to punish its perpetrators.'

Antonio Cassese, the first president of the International Criminal Tribunal for the former Yugoslavia, criticized the ICJ judgement on the ground that "The International Court has set an unrealistically high standard of proof for finding Serbia complicit in genocide." He added:

The ICJ, which ... deals with controversies between states, was faced with Bosnia's claim that Serbia was responsible for the Srebrenica massacre. Although the Court ruled that genocide had taken place, it decided that Serbia was not responsible under international law.
According to the Court, the Bosnian Serb generals who were guilty of this genocide, the various Mladic's and Kristic's, were neither acting as Serbia's agents nor receiving specific instructions from Belgrade... Why was it not enough to prove that the Bosnian Serb military leadership was financed and paid by Serbia and that it was tightly connected to Serbia political and military leadership? More importantly, the ICJ's decision that Serbia is responsible for not having prevented a genocide in which it was not complicit makes little sense.According to the Court, Serbia was aware of the very high risk of acts of genocide and did nothing. But Serbia was not complicit, the Court argued, because "it has not been proven" that the intention of committing the acts of genocide at Srebrenica "had been brought to Belgrade's attention".

This is a puzzling statement at best. 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?'

Vice-President of the International Court of Justice, Judge Al-Khasawneh, criticized the judgement as not reflecting the evidence with respect to Serbia's direct responsibility for genocide at Srebrenica:

"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."

Missing SDC Records

The International Criminal Tribunal never received complete archive of Supreme Defense Council minutes from Serbia. According to the explanation given by Sir Geoffrey Nice, former prosecutor in the trial of Slobodan Milosevic:

"First, it is important to note that Serbia did not hand over to the Prosecution (OTP) the complete collection of SDC [Supreme Defence Council] records. For example, for the year 1995 the OTP received recordings for only about half of all the sessions held by SDC. Further, some of the SDC records were not handed over in their full stenographically recorded form but were produced as extended minutes. That means that they were shorter than steno-notes but longer than the regular minutes. The dates of the missing meetings or the meetings where this lesser form of record was provided, as I recall, were significant – namely dates leading up to, surrounding and in the aftermath of the Srebrenica massacre. The full records of those meetings need yet to be provided. At the same time, these documents, significant as they are, do not constitute a single body of evidence that will explain once and for all what happened and who was culpable. They do provide a much fuller context and provide some very valuable testimonials of things that were said by Milosevic and others. In their un-redacted form they would point all who are interested (not just governments and lawyers) to other documents that have never been provided and that might well be more candid than the words of those at the SD Council meetings who knew they were being recorded by a stenographer. Second, it should also be remembered that there are other protected document collections and individual documents which were, and still are, protected by direct agreements between Belgrade and the former OTP Prosecutor, i.e. they were not protected by the Trial Chamber. These documents are difficult now to identify but if and when Bosnia-Herzegovina decides to reopen the ICJ case it will be essential to require Serbia and/or the ICTY to produce all those documents for the ICJ."

Appeal

Under international law, Bosnia and Herzegovina is allowed ten years from the date of the decision to file an appeal. It is currently in the process of forming its team and gaining financial and political acceptace within the government. Evidence found from crimes committed all throughout Bosnia and Herzegovina will be used as well as the verdict of Momcilo Perisic (General and Chief of the General Staff of the Yugoslav Army) who's decision is expected to influence heavily the genocide case against Serbia if he is found to have been aware of genocide.

Ongoing Bosnian Genocide Trials at the ICTY

Currently, former Bosnian Serb leader Radovan Karadzic

Radovan Karadžic

Radovan Karadžić is a former Bosnian Serb politician. He is detained in the United Nations Detention Unit of Scheveningen, accused of war crimes committed against Bosnian Muslims and Bosnian Croats during the Siege of Sarajevo, as well as ordering the Srebrenica massacre.Educated as a...

and Ratko Mladic

Ratko Mladić

Ratko Mladić is an accused war criminal and a former Bosnian Serb military leader. On May 31, 2011, Mladić was extradited to The Hague, where he was processed at the detention center that holds suspects for the International Criminal Tribunal for the former Yugoslavia...

are both on trial on two counts of genocide and other war crimes committed in Srebrenica, Prijedor, Kljuc, and other districts of Bosnia. Karadzic and Mladic are charged, separately, with:

Count 1: Genocide.
– Municipalities: Bratunac

Bratunac

Bratunac is a town and municipality located in eastern Bosnia and Herzegovina. The easternmost point of Bosnia and Herzegovina is located in the municipality of Bratunac which lies in the Republika Srpska.-1971:26.513 total...

, Foča

Foca

Foča is a town and municipality in southeastern Bosnia and Herzegovina on the Drina river, in the Foča Region of the Republika Srpska entity.-Early history:...

, Ključ

Kljuc

Ključ is a town and municipality by the same name in western Bosnia and Herzegovina. It is located in the Federation of Bosnia and Herzegovina, specifically the Una-Sana Canton. The name of the town and the municipality translates to "Key" in Bosnian....

, Kotor Varoš

Kotor Varoš

Kotor Varoš is a town and municipality in northwestern Republika Srpska, Bosnia and Herzegovina.-History:The city was first mentioned in the 10th century, when it was called Kotor. Varoš, added later, means "town" in Hungarian...

, Prijedor

Prijedor

Prijedor is a city and municipality in the north-western part of Bosnia and Herzegovina. It is situated in the Bosanska Krajina region....

, Sanski Most

Sanski Most

Sanski Most is a town and municipality in northwestern Bosnia and Herzegovina. It is located on the Sana River in Bosanska Krajina, between Prijedor and Ključ. Administratively it is part of the Una-Sana Canton of the Federation of Bosnia and Herzegovina....

, Vlasenica

Vlasenica

Vlasenica is a municipality and town of Bosnia and Herzegovina. Administratively it is part of Vlasenica Region.-1912:...

and Zvornik

Zvornik

Zvornik is a city on the Drina river in northeastern Bosnia and Herzegovina, located south of the town of Bijeljina in Bosnia and Herzegovina. The town Mali Zvornik lies directly across the river in Serbia, and not far north is Loznica.-History:Zvornik is first mentioned in 1410, although it was...

.

Count 2: Genocide.
– Municipality: Srebrenica

Srebrenica

Srebrenica is a town and municipality in the east of Bosnia and Herzegovina, in the Bosnian Serb entity of Republika Srpska. Srebrenica is a small mountain town, its main industry being salt mining and a nearby spa. During the Bosnian War, the town was the site of the July 1995 massacre,...

.

Count 3: Persecutions on Political, Racial and Religious Grounds, a Crime Against Humanity.
– Municipalities: Banja Luka

Banja Luka

-History:The name "Banja Luka" was first mentioned in a document dated February 6, 1494, but Banja Luka's history dates back to ancient times. There is a substantial evidence of the Roman presence in the region during the first few centuries A.D., including an old fort "Kastel" in the centre of...

, Bijeljina

Bijeljina

Bijeljina is a city and municipality in northeastern Bosnia and Herzegovina. The city is the second largest in the Republika Srpska entity after Banja Luka and fifth largest city in Bosnia and Herzegovina, and is situated on the flat rich plains of Semberija...

, Bosanska Krupa

Bosanska Krupa

Bosanska Krupa is a town and municipality in northwestern Bosnia and Herzegovina, on the Una river. It is located northeast from Bihać...

, Bosanski Novi, Bratunac

Bratunac

, Brčko

Brcko

Brčko can refer to the following related geographical locations in Bosnia and Herzegovina:* Brčko District* Brčko...

, Foča

Foca

Foča is a town and municipality in southeastern Bosnia and Herzegovina on the Drina river, in the Foča Region of the Republika Srpska entity.-Early history:...

, Hadžići

Hadžici

Hadžići is a town and a municipality located south west of Sarajevo in Bosnia and Herzegovina. According to government statistics from 2002, Hadžići Municipality has a population of 20,055 residents.- 1971 :18,508 total...

, Ilidža

Ilidža

Ilidža is a town and municipality in central Bosnia and Herzegovina. It has a metro population of 157,654, making it the 7th largest city in the country. Ilidža is the chief suburb of Sarajevo. It is famous for the natural beauty of its surroundings and historical tradition dating back to...

, Kalinovik

Kalinovik

Kalinovik is a town and municipality in the Republika Srpska entity of Bosnia and Herzegovina.Kalinovik is located about 40 kilometres south of Sarajevo, in the middle of one of the karstic landscapes characteristic of the region...

, Ključ

Kljuc

, Kotor Varoš

Kotor Varoš

, Novi Grad

Novi Grad

Novi Grad is a town and municipality in northern Republika Srpska entity, Bosnia and Herzegovina. The town is situated on the Una river on the border with Croatia . Today, the municipality has a population of about 30,000 people with 8,500 households...

, Novo Sarajevo

Novo Sarajevo

Novo Sarajevo is a municipality in Sarajevo, and Sarajevo Canton, Bosnia and Herzegovina.-1971:111,811 total* Serbs - 45,806 * Bosniaks - 37,147...

, Pale, Prijedor

Prijedor

Prijedor is a city and municipality in the north-western part of Bosnia and Herzegovina. It is situated in the Bosanska Krajina region....

, Rogatica

Rogatica

Rogatica is a municipality and town in eastern Bosnia and Herzegovina located 60 kilometres northeast of Sarajevo; midway on the road from Goražde towards Sokolac...

, Sanski Most

Sanski Most

, Sokolac

Sokolac

Sokolac is a town and municipality in Bosnia and Herzegovina and the part of the City of East Sarajevo in the Republika Srpska entity....

, Trnovo

Trnovo

Trnovo may refer to:*In Bosnia and Herzegovina:**Trnovo, Republika Srpska, a town and municipality**Trnovo, Federation of Bosnia and Herzegovina, the rural part of the same pre-war municipality, presently in the Sarajevo Canton*In Bulgaria:...

, Vlasenica

Vlasenica

Vlasenica is a municipality and town of Bosnia and Herzegovina. Administratively it is part of Vlasenica Region.-1912:...

, Vogošća

Vogošca

Vogošća is a secondary suburb and municipality of Sarajevo, the capital of Bosnia and Herzegovina, located about 6 kilometers north of the city center and covering some 72 km².-1971:According to 1971 population census there were 14.402 residents....

, Zvornik

Zvornik

and Srebrenica

Srebrenica

.

Count 4: Extermination, a Crime Against Humanity.

Count 5: Murder, a Crime Against Humanity.

Count 6: Murder, a Violation of the Laws or Customs of War.

Count 7: Deportation, a Crime Against Humanity.

Count 8: Inhumane Acts (forcible transfer), a Crime Against Humanity.

Count 9: Acts of Violence the Primary Purpose of which is to Spread Terror among the Civilian Population, aViolation of the Laws or Customs of War.

Count 10: Unlawful Attacks on Civilians, a Violation of the Laws or Customs of War.

Count 11: Taking of Hostages, a Violation of the Laws or Customs of War.

Dissenting opinion

Analysis

Criticism of the ICJ Judgement

Missing SDC Records

Appeal

Ongoing Bosnian Genocide Trials at the ICTY

See also

Further reading