World Court Partly Absolves Serbia of Bosnia Genocide: A Kick in the Teeth to Oppressed Everywhere

World Court Partly Absolves Serbia of Bosnia Genocide: A Kick in the Teeth to Oppressed Everywhere

By Michael Karadjis

On February 26, the International Court of Justice (ICJ) ruled that, while genocide had been perpetrated by the Bosnian Serb Army (BSA) against the Bosnian Muslim population of Srebrenica, the government of neighbouring Serbia was not directly responsible for it, even though it armed and coordinated with the BSA and paid its officers.

Nevertheless, it also made the partly contradictory ruling that Serbia was guilty of not using its influence over the BSA to prevent the Srebrenica genocide.

It also ruled that while the BSA had committed enormous crimes against the Muslim population in the rest of Bosnia, these did not constitute genocide except in Srebrenica.

Background

The Republic of Bosnia-Herzegovina originally brought these genocide charges against Serbia to the ICJ in 1993, on the basis that the Serbian regime armed and financed the BSA, that both civilian and military leaders of Serbia and the para-state of ‘Republika Srpska’ (RS, which ran the BSA), set up on the 70 percent of Bosnia on which non-Serbs were driven out of in 1992, coordinated their actions, and that the Serbian government paid the salaries of the BSA officers.

International human rights lawyer Francis Boyle helped Bosnia prepare its case. In its original version, the genocide case was launched against the United Kingdom. The then Tory UK government of John Major was the most hard-line supporter of the criminal UN Security Council arms embargo being maintained against Bosnia in the face of the genocidal assault by the BSA, which was armed to the teeth by what used to be the Yugoslav People’s Army, the fourth largest military power in Europe, now with Yugoslav break-up a completely Serbian armed force.

Bosnia decided against proceeding with the case against the UK but maintain it against the more immediate culprit, Serbia. This may have been related to enormous pressures exerted by the UK, plus an understanding of how hard it would be to prove genocide against the UK for its underhanded support to Milosevic and the BSA. The fact that the ICJ could not even find Serbia itself was directly responsible underlines that this was probably correct.

Francis Boyle, who for many years represented the Bosnian government in the ICJ suit, was also from 1991 to 1993 a legal advisor to the Palestine Liberation Organization, and has been Attorney of Record for the Chechen Republic of Ichkeria. Previously he worked to prevent a war between the US and Libya in the 1990s, and in the 1990s called on Iraq to sue the US for genocide as a result of the criminal embargo which killed over a million Iraqis. He calls on Palestine to take Israel to the ICJ to charge it for genocide, and notes the very strong parallels with the Bosnia case (http://www.mediamonitors.net/francis1.html). He has taken a powerful stand against the US invasions of Afghanistan and Iraq, and has drawn up guidelines for the impeachment of the Bush regime. He has also given legal advice to Hawaian advocates of independence, has represented other peoples including the Blackfoot Nation and the Lakota Nation. Though a US citizen, he also holds honorary citizenship of Bosnia-Herzegovina.

Not the Hague War Crimes Tribunal

It is important to understand that this ICJ suit was distinct from the Hague International War Crimes Tribunal for the former Yugoslavia (ICTY), which has been hearing cases against dozens of Serb, Croat, Bosnian Muslim and Kosovar Albanian individuals for many years. The fact that the Hague Tribunal was set up by the UN Security Council, which includes three of the NATO powers who themselves committed grave violations of international human rights law during their bombing of Serbia in 1999, makes it appear more interested in “victors’ justice” than real justice, even though enormous crimes certainly were committed by Balkan leaders and there is certainly a popular sentiment in the Balkans for bringing the guilty to justice.

In addition, by concentrating on individuals rather than regimes, the ICTY may allow a number of people to be scapegoated while allowing the states that committed the crimes – principally the Serbian and Croatian states and the Bosnian Serb and Bosnian Croat para-states – to be absolved as a whole.

At some level, this focus on individuals allows other Serbs, Croats, Muslims and Albanians to feel they were not collectively guilty of these crimes as entire nations – the responsible individuals are being indicted. However, this is based on a mistaken classless view that the whole people are guilty when a regime is guilty.

Bosnia’s ICJ case against the Serbian regime of Milosevic, by contrast, sought to find not just individual scapegoats such as Milosevic guilty, but the criminal regime as a whole.

It is important to underline that Bosnia received no support from the imperialist countries for its suit against Serbia, in sharp contrast to their support for the ICTY trials. There are very good reasons for this. It is always much safer for imperialism to find “bad” individuals guilty than states. If Serbia – not just Milosevic or other individuals – can be found guilty of genocide, then based on the same principles, there may be little stopping Palestine from taking the US and Israel to the ICJ, and any number of brutally repressive states, often enough US allies, could also end up in court.

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 dangerous 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.”
(http://flyingimam.blogspot.com/2007/02/genocide-politics.html)

What did the ICJ find?

Many reactions to this ruling indicate that those making these statements have not actually read the ruling or even the summary. Some supporters of Serbian nationalism on the left/right continuum gloat that the ruling exonerated Serbia of involvement with the massive war crimes in Bosnia; others however claim that by still insisting Serbia was guilty of not using its influence to prevent genocide, the court was obviously making a ‘political’ statement against Serbia, given the alleged “lack of evidence” of Serbian involvement elsewhere in the ruling. The more exotic even claim that even just calling Srebrenica a genocide represents an unfair ruling against “the Serbs” because the court allegedly just “had to” find some genocide involved to allegedly “satisfy” the West. This is all uninformed pseudo-political “left”/right café gossip.

There are two issues: whether Bosnian Serb nationalist forces carried out genocide against the Bosnian Muslims; and whether the neighbouring state of Serbia itself was also responsible due to its close connection to the Bosnian Serb forces.

On the first issue, the ICJ found that enormous “war crimes” and “crimes against humanity” had been committed by the Bosnian Serb Army (BSA, run by the Bosnian Serb para-state Republika Srpska (RS)) against the Bosnian Muslim population; it found that the deaths in the 3.5 year Bosnia war were overwhelmingly those of what it calls in legalese the "protected group", meaning the Bosnian Muslims; it found that these “crimes against humanity” included massive ethnic cleansing to remove the Muslim population from large areas of Bosnia (ie, in order to set up an ethnically pure "Serb state" where non-Serbs lived, in the same manner of Israel in 1948 etc); included terrifying crimes at the detention camps; included surrounding cities and towns and shelling them for years and starving the population; included large-scale destruction of Bosnian Muslim religious and cultural buildings and monuments (eg, 1400 mosques were demolished, pretty much every much in the regions conquered by the Serbian and allied Croatian chauvinist forces, while zero Orthodox or Catholic churches were destroyed in the Bosnian government-controlled regions, and grand libraries and museums containing hundreds of thousands of items and manuscripts from medieval Bosnian civilisation were torched, the biggest book-burning in history). Quite clearly all these findings are consistent with the Bosnian case against the crimes of Serbian nationalism, and completely contradict the version of events promoted by the “left”/right apologists for Serbian chauvinism.

However, although all these crimes were consistent with aspects of the definition of “genocide” (ie “to destroy, in whole or in part, a national, ethnical, racial or religious group, as such” in various ways, including killing or making life unbearable for their continued survival as a group), the bar in a "genocide" trial is set so high that you do not only have to prove all these genocidal crimes were committed, it also has to be proven that the actual "intent" of all these crimes is in fact genocide. There was no dispute in the court ruling that these crimes occurred and that the BSA/RS was responsible. But only in the case of the massacre of 8000+ Muslim captives after the BSA had overrun and "cleansed" Srebrenica in July 1995 was all this allowed to be called "genocide."

While some of the strange Chetnikophilic wing of the “left” believe any finding of genocide, even at Srebrenica, is some grand conspiracy against “the Serbs” (see below), Noam Chomsky by contrast has previously noted the fact that the ‘bar’ in the Hague trials is set so high for ‘genocide’ that even Hitler would be found innocent. Moreover, he makes this correct claim in a piece reacting to the revelations of an open call by Nixon and Kissinger to bomb “anything that moves” in Cambodia. Chomsky is correctly pointing out the hypocrisy of the US where it can refer to ‘genocide’ in other places, such as by Hitler or Milosevic, even when there is no “paper trail”, but not when they do it themselves even when there is such a paper trail. It is worth quoting Chomsky here, both for the points he makes, and also to stress his tendency to be consistent as an opponent of crimes against humanity, whether carried out by Nixon/Kissinger, Hitler, Milosevic or others, in contrast to some more Manichean left ‘anti-imperialists”:
“On May 27, the New York Times published one of the most incredible sentences I’ve ever seen. They ran an article about the Nixon-Kissinger interchanges. Kissinger fought very hard through the courts to try to prevent it, but the courts permitted it. You read through it, and you see the following statement embedded in it. Nixon at one point informs Kissinger, his right-hand Eichmann, that he wanted bombing of Cambodia. And Kissinger loyally transmits the order to the Pentagon to carry out "a massive bombing campaign in Cambodia. Anything that flies on anything that moves." That is the most explicit call for what we call genocide when other people do it that I’ve ever seen in the historical record.”

“Right at this moment there is a prosecution of Milosevic going on in the international tribunal, and the prosecutors are kind of hampered because they can’t find direct orders, or a direct connection even, linking Milosevic to any atrocities on the ground. Suppose they found a statement like this. Suppose a document came out from Milosevic saying, "Reduce Kosovo to rubble. Anything that flies on anything that moves." They would be overjoyed. The trial would be over. He would be sent away for multiple life sentences–if it was a U.S. trial, immediately the electric chair. But they can’t find any such document. In fact, nobody has even found a document like that connecting Hitler to the Holocaust. Scholars have been working on it for years. I can’t remember an example of such a direct order to carry out what amounted to a huge massacre, way beyond the level of anything we call genocide when other people do it.”
(http://www.isreview.org/issues/37/chomsky.shtml)

Anyway, back to the ICJ ruling, the somewhat strange judgment partly reads that the court accepts that it has been:

"… established by overwhelming evidence that massive killings in specific areas and detention camps throughout the territory of Bosnia and Herzegovina were perpetrated during the conflict. Furthermore, the evidence presented shows that the victims were in large majority members of the protected group, which suggests that they may have been systematically targeted by the killings”, but the court is "not convinced … that it has been conclusively established that the massive killings of members of the protected group were committed with the specific intent (dolus specialis) on the part of the perpetrators to destroy, in whole or in part, the group as such … 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" but “it has not been conclusively established that those atrocities, although they too may amount to war crimes and crimes against humanity, were committed with the specific intent ... to destroy the protected group, in whole or in part."

This is even stranger when it comes to ethnic cleansing. The ethnic cleansing of the Muslim and Croat populations from the 70 percent of Bosnia rapidly occupied by the BSA (at the beginning of the war with the direct aid of the “Yugoslav” army) began in April 1992 and completely transformed the demographic landscape. It would appear difficult to not see ethnic cleansing – with or without mass killing and all the other crimes that the ICJ accepts occurred – as a form of genocide, ie, that the destruction of the Muslim (and Croat) communities throughout much of Bosnia were not acts committed with "intent to destroy, in whole or in part, a national, ethnical, racial or religious group."

Yet the ICJ decided that:

“ ‘Ethnic cleansing’ can only be a form of genocide within the meaning of the Convention, if it corresponds to or falls within one of the categories of acts prohibited by Article II of the Convention. Neither the intent, as a matter of policy, to render an area “ethnically homogeneous”, nor the operations that may be carried out to implement such policy, can as such be designated as genocide. However, this does not mean that acts described as “ethnic cleansing” may never constitute genocide, if they are such as to be characterized as, for example, “deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part”, contrary to Article II, paragraph (c), of the Convention, provided such action is carried out with the necessary specific intent (dolus specialis), that is to say with a view to the destruction of the group, as distinct from its removal from the region.”

Thus the forced removal of a group of people from a region, even when combined with massive atrocities and eradication of any remnant of their culture, does not constitute “the destruction of the group” and does not “inflict(ing) on the group conditions of life calculated to bring about its physical destruction in whole or in part.” While this may have been the legal framework employed, it is quite clearly debatable whether morally ethnic cleansing represents the destruction of a group of people, ie, whether or not it constitutes genocide. To say the least, it does nothing to morally absolve the RS/BSA of such crimes even if it chooses to not call them “genocide.”

On the second issue, of whether or not the government of Serbia was responsible for the genocide in Bosnia (or in Srebrenica anyway), the court ruled there was overwhelming evidence that the Serbian regime of Milosevic financed and armed the BSA, that it politically and militarily coordinated actions with the RS/BSA throughout the war, at a high level, that it paid the salaries of the BSA officers, including Mladic, the general held most responsible for the Srebrenica genocide, so again this cannot be read as in any way absolving Serbia’s role in the destruction of Bosnia. However, it cannot be found guilty of the specific "intent" to commit genocide in Srebrenica, because, although it coordinated military actions with the BSA, and although it knew full well the BSA was entering Srebrenica, and that it would be carrying out ethnic cleansing there, and even that it was likely that it would commit massacres there, it was not proven that it actually knew or approved of plans to liquidate the male population there.

Nevertheless, in an obviously contradictory statement, it found the Serbian regime guilty of not doing enough to prevent its BSA cronies from carrying out the genocide, since it had influence over them. As Professor Martin Shaw from the University of Sussex comments (http://www.opendemocracy.net/globalization-institutions_government/icj_bosnia_serbia_4392.jsp):

“(This) is a curious finding, since if Serbian leaders were really in a position to influence the Bosnian-Serbian army not to massacre the Muslim [Bosniak] men of Srebrenica, that implies a degree of knowledge and influence that suggests complicity in the massacre - something which the Court denies.”

Moreover, as Antonio Cassese, the first president of the International Criminal Tribunal for the former Yugoslavia and later the chairperson of the United Nations International Commission of Inquiry on Darfur, adds:

“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" … 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?”

(from The ICJ ruling, Bosnia vs Serbia, shows governments can avoid liability for genocide, even if they are found to be complicit in genocide, http://srebrenica-genocide.blogspot.com/2007/02/icj-ruling-bosnia-vs-serbia-dangerous.html).
In any case, despite the outcome whitewashing the genocidaires, even the judgement that a state is guilty of not doing enough to prevent genocide represents the first time a state has been found guilty of violating the UN genocide convention. As the legal representative of Bosnia-Herzegovina, Sakib Softic, stated in the Banja Luka paper Nezavisne:

"We don't have to be disappointed 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 the case we collect new evidence that proves Serbia had an intention to commit genocide, we have a period of 10 years to start new proceedings at the ICJ."

In fact, given that only the lighter charge, that Serbia did not do enough to “prevent” the Srebrenica genocide, can be found against Serbia, despite its active coordination with and arming of the BSA, it may even be easier to press charges against various states, both in other conflicts and related to this conflict. Above all, the so-called “international community”, which had tens of thousands of UN troops all over Bosnia, which had disarmed the local Bosnian Muslim forces in Srebrenica in exchange for offering to “defend” it as a “safe area”, were also surely guilty of “failing to prevent genocide.” This applies particularly to the Netherlands, whose troops were in Srebrenica, and didn’t fire a shot as Mladic’s butchers moved into the town, separated men and women, massacred the former and expelled the latter, and were later awarded medals by the Dutch government.

It is important to understand that it was not only due to the above technicalities that the ICJ made these decisions, but also due to a political deal which denied the court the very most important evidence of all – namely, the records of the Serbian Defense Council, with the minutes of the sessions Milosevic held with the military and political leadership of Serbia-Montenegro and the RS/BSA. We can only imagine the very different reaction from “the left”, whether the “Workers” Socialist Website or “Workers” World or Ed Herman or Michael Parenti if it was the US or Israel on trial and the most key piece of evidence were left out due to a deal (as of course would be most likely to occur).

These SDC records are already in the Hague, but with ICTY, not the ICJ. However, this evidence may not be used by the ICJ, under a deal made between the ICTY and the government of Serbia. This deal was reached after the ICTY, in June 2003, ordered Belgrade to hand over these transcripts. Serbia complied, but under a deal whereby the bulk of these documents would remain under seal at the court and only be used by ICTY, and not by the ICJ.
The Association Women of Srebrenica (mostly mothers of the genocide victims) condemned Chief UN Prosecutor, Carla Del Ponte, for this deal with Belgrade and stated that she 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).

Former Yugoslav president Zoran Lilic has said the SDC records would have been very valuable for Bosnia's case, as the SDC decided in 1993 to formalise support for officers of the Bosnian Serb Army by establishing a body within the Yugoslav army called Personnel Centre 30, he claims.
Lilic’s view appears to be backed up by the ICTY decisions, which were able to use this secret evidence. In its June 16, 2004 decision, the ICTY trial chamber – with access to the SDC records – said that "there is sufficient evidence that genocide was committed in Brcko, Prijedor, Sanski Most, Srebrenica, Bijeljina, Kljuc and Bosanski Novi". This is so much wider than merely Srebrenica that it essentially covers the length and breadth of Republika Srpska. Further, they also claimed to be “satisfied beyond reasonable doubt that the accused was a participant in the joint criminal enterprise" which had "the aim and intention to destroy a part of the Bosnian Muslims as a group".

“Left” confusion

While it is not surprising to see reactionary, pro-Chetnik Serbian nationalists, and their right-wing supporters, from the likes of Le Pen, to Ian Paisely, to Ann Coulter, to Ariel Sharon and so on, would gloat over the pardoning of Serbia for the largest post WWII anti-Muslim pogrom, it is more curious to see parts of “the left” joining them. I wonder how “left" groups would respond if, as Dr. Sahib Mustaqim Bleher, or Francis Boyle, suggest, Palestinians took Israel to the ICJ or Iraqis took the US to the ICJ or Timorese took Indonesia to the ICJ and the court found them guilty of committing similar enormous crimes but ruled that they were not guilty of genocide, because specific "intent" was not proven, ie, that they cannot find a written government order to liquidate part of a group of people, that there is no paper trail leading from the US, or Israeli, or Indonesian, or Serbian regimes, because they have shredding machines (as Chomsky points out, quoted above, by the ICJ’s standards even Hitler would not have been found guilty of genocide due to this lack of a paper trail). Would "the left" likewise cheer on such an ICJ decision in these cases? What if the massacre of tens of thousands of Muslims, the ethnic cleansing of over a million Muslims, the death camps, the shelling of cities for years, and the destruction of every mosque or Muslim monument over a large area took place not in Bosnia but just next door in Italy, France or Germany? Would "the left" cheer on the perpetrators? I mean if the particular “leftists” in question had not become completely morally degenerate?

Then there is the issue of so-called “demonisation” of "the Serbs" as a people which some claim is the problem, and who see the acquittal of Serbia as a relief from such “demonisation”, or alternatively, that the “demonisation” lives on even more unjustly now that Serbia has allegedly been exonerated as a result of years of the unjust accusations that have now been “proven” false. We could say much about the super-legalistic view that a court ruling on a technicality has “proven” anything, as we saw above; and how inconsistent some are when it comes to other court rulings they consider unjust. We could also say much about the fact that if they think the ruling really exonerates Serbia then they haven’t actually read the decision. Then there is the issue of exactly what “demonisation” means. I’m not saying there has not been any, in the way the media reports the issues, particularly in 1999 and after when the imperialist powers decided to move against Serbia over the Kosova issue, ie, years after the end of the Bosnian war. The imperialist media and politicians regularly use such base methods of reporting on whoever becomes an official “enemy”. Anyone reading the Telegraph during the Indonesian terror in East Timor in 1999 leading up to Australian intervention would have to be blind to not see massive demonisation of the Indonesians. That does not alter the fact that the Indonesian regime and its Timorese tools were guilty as hell. We must certainly oppose demonisation and any suggestion that the Serbian people as a whole were responsible for the actions of a particular regime in power.

However, the implication that “the Serbs” were “demonized” by the fact that the *regime* was accused of genocide, in and of itself, is absurd. If “the Serbs” were "demonised" by pointing to the real crimes committed by their leaders, does this mean that the left "demonises" "the Americans", "the Israelis", "the Turks" etc when reporting on the crimes of these regimes?

The fact that Bosnia’s ICJ case sought to find not just individual scapegoats such as Milosevic guilty, but the criminal regime as a whole, has unfortunately been misinterpreted by sections of the liberal media, and also, more shamelessly, by sections of the revisionist “left” who ought to know better about class analysis, as an attempt to find “the whole Serbian nation” collectively guilty of genocide.

An example of this flagrant dishonesty can be found in an eccentric article by one Claire Fox, a former member of the highly eccentric and somewhat suspicious group ‘Living Marxism’, entitled ‘Justice delayed ...’ (1) (http://commentisfree.guardian.co.uk/claire_fox/2007/02/the_international_court_of_jus.html). Fox writes:

“This has been an unprecedented case; it's the first time a state, an "entire nation", has been charged with genocide.”

Her quotation marks around “entire nation” are her own: they represent a quote from no-one. She continues, equally dishonestly:

“Treating Serbia as guilty and a murderous nation has become second nature in all debates about humanitarian intervention … during the Balkans conflict, the Serbs were routinely demonised en masse … they were frequently described as "thugs", "fascists", "gangsters" and "rapists" by everyone from Margaret Thatcher to Red Ken Livingstone, from neo-cons to liberal journalists”

Fox of course quotes no-one, because her aim is to deliberately conflate condemnation of the actions of the Serbian regime – in the same way as we on the left regularly condemn the actions of the US, UK, Israeli, Indonesian, Turkish and so many other regimes – with condemnation of the entire Serb people, on no other basis than the fact that Fox herself does not believe the Serbian regime was guilty as charged (therefore if you disagree with her political judgement, you must be condemning the whole Serb people). If anyone describes the actions of US, or Israeli, or Turkish, or Indonesian, or Croatian, or Nigerian armed forces as the actions of thugs or gangsters, if they describe the use of rape as a weapon in war, that is all OK, fine political judgements, but if you do exactly the same against Serbian armed forces, you are immediately condemning the whole “Serb people” as thugs, gangsters and rapists. How utterly sick.

As András Riedlmayer notes
(http://listserv.buffalo.edu/cgi-bin/wa?A2=ind0702&L=justwatch-l&D=1&O=D&P=63185):

“Many news reports, both in Serbia and abroad, are treating as completely synonymous the terms government, state, nation, people... and are thus claiming that if the ICJ rules for the plaintiffs in the case, an entire people will be judged genocidal.”

For example, he quotes Associated Press (Arthur Max, ‘World Court to deliver momentous ruling whether Serbia responsible for genocide’, February 23, 2007):

“THE HAGUE, Netherlands (AP) - Can a state commit genocide? Should an entire
nation -- not just its presidents, generals, and soldiers -- be held responsible for humanity's worst crime?”

Riedlmayer continues:

“That is pernicious nonsense. A state, like any governmental body, can be sued for malfeasance. Thus, to give an everyday example, a municipality can be sued for discrimination in employment. A court that finds the municipality guilty of those allegations does not thereby brand every resident of that municipality as a bigot. And even if the municipal administration that engaged in those illegal acts has been turned out of office by the citizens of that municipality before the case comes to judgement, the municipality as a corporate entity will still be liable to pay any compensation ordered by the court.”

Such “pernicious nonsense” is an outrageous straw argument coming from those who have no arguments. When the ICJ ruled against the US for its support for the contras and mining of Nicaraguan harbours in the 1980’s, this was not a ruling that found “the entire American people” guilty of these crimes, but the US ruling class and its regime in power.

Interestingly, for those who stress the “demonisation” issue, and for those left-liberals who think Bosnia was just a "civil war" where "all sides were guilty", where "all sides commit atrocities" (you know, like "both sides" do in Israel/Palestine, "all sides" in Iraq, "both Turks and Kurds", "all sides" in Indonesia, both “Catholics and Protestants” in Ireland etc), then this ruling, far from reducing “demonisation”, actually reinforces the potential for it in one sense. Because if it was not the fact that it was the Serbian regime - ie, the inheritor of what had been previously the Yugoslav military - the fourth most powerful military in Europe - via direct support, control, arming and financing of the BSA/RS, that allowed such an absolute superiority of the Bosnian Serb Army and para-state over the Bosnian Muslim, Croat and multiethnic populations, that allowed the BSA to actually commit genocide as agreed by the ICJ, then how did it happen so easily? By absolving Milosevic and neighbouring Serbian regime, the ICJ ruling actually throws back all the blame for "genocide" onto the Bosnian Serb rulers. And of course there is no doubt that the Bosnian Serb rulers are guilty as hell. But if this was a mere "civil war" without Belgrade's direction, then the Bosnian Serbs must have been extremely vicious, as a numerical minority in Bosnia, to achieve such unrivalled mastery and be able to impose such terror. “Maybe they really are very bad, warlike, cruel, brutal people after all,” is one possible conclusion from the ICJ ruling absolving the role of the neighbouring regime that had the absolute military superiority throughout the region. It would be exactly the same as if the pro-Indonesian Timorese militias in 1999 that killed 1-2000 Timorese did it all by themselves and their success had nothing to do with the enormous superiority in the region of the Indonesian army (I suppose I’d better not go on and call the killing of 1-2000 Timorese "genocide" since the killing of 100,000 Bosnians isn't genocide according to some of "the left" who might correct me ...)

Republika Srpska: A “state” founded on genocide and legalized by imperialism

This also leads to another political issue: by agreeing that genocide has been committed in Srebrenica, the ICJ calls into question the very existence of Republika Srpska, since this means that it was a state created by genocide (which, outside of legalese, is completely true). However, since it was only in Srebrenica and not in the rest of Bosnia, perhaps RS can argue the opposite. If it was only built on ethnic cleansing, and not genocide, then perhaps that is not too bad. Perhaps they just have to give back Srebrenica. But on the other hand again, since Serbia itself is absolved from “genocide,” since outside intervention wasn’t a factor, this actually makes the leaders of RS more guilty of genocide themselves, thus again swinging the argument against the right of RS to exist.

Haris Silajdzic, Bosniak member of Bosnia's tripartite state Presidency, claimed that the ICJ's ruling should mark the beginning of a process to erase results of genocide in Bosnia."Results of the genocide should be annulled with a new constitution to create a democratic system in accordance with Bosnia's multiethnic society as it was before the genocide." He said the current Bosnian constitution, which created two entities, the Srpska Republic and the Bosniak-Croat Federation, was based on ethno-territorial principles and genocide, and must be dismissed as such. "Bosnia-Herzegovina must therefore purge itself of the remnants of the genocide that permeates throughout Bosnian society. We will achieve this by altering what has been founded on the genocide's outcome — the interior structure of Bosnia and its constitution," Silajdzic said.

Needless to say, that is not likely to happen. At present it is extremely unrealistic, without a much deeper process of reconciliation. As Peter Lippman, a long time supporter of Bosnia, comments, “The ICJ decision, increasing the anger on the side of victims and exonerating the guilty, doesn't help any of this.”

But another reason it won’t happen is that it is not the program of the “international community”, ie the imperialist powers, who legalized RS in all their Bosnian partition “peace plans” between 1992 and 1995, ending with the US-imposed Dayton Accord which split Bosnia in two and rewarded the genocidaires.

And the issue of what the big powers want is probably not irrelevant; the idea that politics is completely divorced from legal judgments is illusory. Again quoting Martin Shaw:

“There must be a suspicion that the court is paying some attention to the political situation in and around Serbia, where the Radical Party (headed by indicted war criminal Vojislav Šešelj) remains a formidable force, and the prospect of conditional independence for Kosovo is making for renewed turbulence. It is true that a tougher verdict would have exacerbated these short-term problems in Serbia, making it more difficult for the European Union to incorporate it peacefully into the fold. But this would hardly be a reason to deny justice - one must hope that this, at least, was not behind the ICJ's timid verdict.”

In any case, since it has been ruled that genocide did occur in Srebrenica, victims of the genocide there are seeking proclamation of Srebrenica and Zepa as special political districts, which would secede from RS. Prior to the conflicts of the 1990s, Srebrenica's population (like much of east Bosnia) was over 75% Muslim, while Serbs constituted just over 22%. Today, however, it is mostly a Serb town. On March 12, 2007, a gathering took place in Srebrenica to discuss demands by several hundred Muslim returnees, and the Bosniak members of the municipal assembly, that the town be given special status. Ambassadors from Turkey, Saudi Arabia, Iran, Libya and the Palestinian Authority came, along with a number of Bosnian politicians including the Muslim and Croat members of the Bosnian state presidency, Haris Silajdzic and Zeljko Komsic, who supported their demands. Participants concluded that state and entitiy institutions are obliged to make decisions to implement the ICJ verdict. By contrast, the Office of High Representative [OHR] retorted that this was “unconstitutional.” It claimed the call by the Bosniak members of the municipal assembly to secede from RS “exceeded the responsibilities of the municipality” as defined by the RS Constitution, and declared “the OHR is particularly concerned about the threat to unilaterally pass a decision on separation of the Municipality from the RS. If the municipal assembly were to act on this, the High Representative would have no choice but to take robust action.” It would be good to know whether the “anti-imperialist” leftists who claim to oppose imperialist intervention in the Balkans would oppose such “robust” imperialist action against the relatives of Srebrenica genocide victims for declaring their wish to secede from the state responsible for their genocide. We won’t be holding our breath.

Some reactions from Serbian progressives

While some on the western “left” are still shamelessly bleating on that any criticism of the actions of the Serbian regime represents “demonisation of the Serbs” as a whole, from within Serbia many decent people criticised the verdict for exonerating the genocidaires, in the same way as decent people in Australia and the US condemn the crimes of our own ruling classes and regimes.

Biljana Kovacevic Vuco, president of the Lawyers Committee for Human Rights, said the verdict represented “victory for the politics of Slobodan Milosevic, the victory of Ratko Mladic, of Vojislav Kostunica and Serbia’s [ultra-nationalist] Radicals.”The verdict will not help Serbia confront its past, Aleksandar Popov, of the NGO Igman Initative said. “The Srebrenica verdict is only symbolic and does not give the complete picture of Serbia's role in the wars of the last decade,” Popov said.The head of the Youth Initiative for Human Rights, Andrej Nosov, said he hoped the verdict would mean Serbia could no longer deny it had nothing to do with events in Srebrenica. “The verdict opens a moral question about what Serbia could have done to prevent genocide in Bosnia,” Nosov said. “Regardless of the verdict, Serbia has an obligation to tell the whole truth about the victims and give them justice and reparations,” he added.The president of Vojvodina’s Social Democratic League, Nenad Canak, condemned the ICJ verdict. “Let Bosnia's blood and ashes rest on the hands of all those who made such a judgment,” he said. “The only thing I can say is to remind you of the words of Primo Levi written on a wall in Dachau. 'The man who denies Auschwitz is the same one who is ready to repeat it'.”

Real role of the “international community” in Bosnia

Many of the allegedly “left” reactions to this judgement reflect the very incorrect view that these people adopted towards the entire Yugoslav conflict, ignoring what actually happened, with a preference for statements of pure metaphysics, such as the idea that imperialism “broke up Yugoslavia” or “intervened against the Serbs.” This article is not the place to go into refuting this kind of metaphysics, which I have done extensively elsewhere, but the following excerpt from an article on the ICJ judgement by Edina Becirevic, a senior lecturer at the University of Sarajevo’s Faculty of Criminal Justice Sciences, includes a brief but very correct and relevant summary of the actual role of the “international community” in the war in Bosnia. It ends with the birth of imperialist recognition of RS, the state born of genocide, which seems an appropriate place to conclude this essay:

“In the Bosnian war, the international community stood by and watched as Serbia unleashed aggression against the country’s non-Serb population. Governments worldwide ignored the concentration camps, genocidal rape, mass murders of non-Serbs, destruction of cultural monuments, sieges of cities and intentional starvation of civilians - in short, they pretended not to recognise genocide.

“Instead, they chose to call it a civil war and deemed the actions of the VRS and paramilitaries by the euphemistic term “ethnic cleansing”. In doing so, they justified their failure to defend the rules imposed on the world’s governments by the Genocide Convention of 1951 - which outlaws the intentional destruction of a national, ethnical, racial or religious group “in whole or in part”.

“In those difficult days, the Bosnian government realised that the world was divided into two. There was the world of dominant western politics, with respect for military power, and then there was the world of civil society that saw the genocide in Bosnia for what it was. For a long time, these different perspectives gave the late Yugoslav president Slobodan Milosevic a schizophrenic profile in the eyes of the world - some regarded him as the guarantor of a stable Balkans, while others saw him as a war criminal.

“One question that has puzzled many is, “Why did the Bosnian government bring genocide charges against Serbia and Montenegro to the ICJ in 1993?” By that time, hadn’t they lost faith in the international community and the idea of justice? Or had they decided to look for it in a place where moral values should be preserved? In bringing the lawsuit, Bosnia moved its appeal for action to be taken against Serbia from the Security Council to the International Court of Justice, from the politicians to the judges. In doing so, it hoped to remind the Security Council of its obligation under the genocide convention, and to give them legal justification to use international forces.

“Faced with the prospect of the destruction of its people, the only option left for the Bosnian government was to trust the court. It had faith that its judges would preserve the values seemingly abandoned by politicians.

“According to the United Nations, the simmering conflict in Bosnia was a civil war and ethnic cleansing, and therefore the international community was under no obligation to intervene. But in July 1995, this ethnic cleansing intensified, as Bosnian Serb forces killed thousands of Bosniaks in the UN enclave of Srebrenica in a matter of days. The scale of the Srebrenica massacre, coupled with the fact that UN troops had failed to protect them, forced the international community to begin military intervention.

“Against all principles of international law, the perpetrators of the genocide were subsequently rewarded for their crime with half of the territory of Bosnia, after the formal establishment of Bosnian Serb entity Republika Srpska, RS, which continues to exist today.”

(from ‘ICJ JUDGMENT SIGNIFICANT DESPITE FLAWS’, by Edina Becirevic, from IWPR, Tribunal Update, No. 491, March 4, 2007)

Appendix: The dissenting opinion of the ICJ vice president Al-Khasawneh

It is worth also reading the dissenting opinion of the vice-president of the ICJ, Awn Shawkat Al-Khasawneh, which makes a great number of important points. Below are some notable excerpts; his entire statement can be read at:

http://www.icj-cij.org/icjwww/idocket/ibhy/ibhyjudgment/ibhy_ijudgment_20070226_frame.htm

Beginning of excerpt:

Serbia’s international responsibility incurred as a consequence of its involvement as a principal actor or an accomplice in the genocide that took place in Bosnia and Herzegovina. Such involvement is supported, in my opinion, by massive and compelling evidence … the involvement or implication of the FRY in the genocide that took place in Bosnia and Herzegovina in the 1990s was both more serious in nature and more extensive in territorial scope than the mere failure to prevent genocide in Srebrenica conveys.

… This implies that the charge that genocide took place also in other parts of Bosnia and
Herzegovina and that the FRY was responsible not only for its failure to prevent genocide but for
being actively involved in it either as a principal or alternatively as an accomplice or by way of
conspiracy or incitement would in all probability have been proven had the Court not adopted the
methodology discussed below

In the first place, the Court was alerted by the Applicant to the existence of “redacted” sections of documents of the Supreme Defence Council of the Respondent. Regrettably, the Court failed to act although, under Article 49 of its Statue, it has the power to do so. It is a reasonable expectation that those documents would have shed light on the central questions of intent and
attributability. The reasoning given by the Court in paragraph 206 of the Judgment, “[o]n this
matter, the Court observes that the Applicant has extensive documentation and other evidence
available to it, especially from the readily accessible ICTY records . . .”, is worse than its failure to act.

The Court first considers whether the ‘Strategic Goals of the Serbian People in Bosnia and Herzegovina’ (2) evidence genocidal intent, but concludes that the goals “were capable of being
achieved by the displacement of the population and by territory being acquired” (Judgment,
paragraph 372). The Court further notes that the motive of creating a Greater Serbia “did not
necessarily require the destruction of the Bosnian Muslims and other communities, but their
expulsion” (ibid.). The Court essentially ignores the facts and substitutes its own assessment of
how the Bosnian Serbs could have hypothetically best achieved their macabre Strategic Goals

The Applicant is asking the Court to look at the pattern of conduct and draw the logically necessary inferences. The jurisprudence of the international criminal tribunals on this point is less amenable to artificial distinctions between the intent relevant to genocide and that relevant to ethnic cleansing than the Court. The Appeal Chamber in Krstić has clearly held that the pattern of conduct known as ethnic cleansing may be relied on as evidence of the mens rea of genocide. Coupled with population transfers, what other inference is there to draw from the
overwhelming evidence of massive killings systematically targeting the Bosnian Muslims than
genocidal intent? If the only objective was to move the Muslim population, and the Court is
willing to assume that the Bosnian Serbs did only that which is strictly necessary in order to
achieve this objective, then what to make of the mass murder?

The second argument the Court relies on bears on the conduct of the ICTY’s Prosecutor and the Tribunal’s jurisprudence on genocide. The Court rejects the Applicant’s argument that the
pattern of atrocities committed over many communities demonstrates the necessary intent because it “is not consistent with the findings of the ICTY relating to genocide or with the actions of the Prosecutor, including decisions not to charge genocide offences in possibly relevant indictments, and to enter into plea agreements” (Judgment, paragraph 374). That the ICTY has not found genocide based on patterns of conduct in the whole of Bosnia is of course not in the least surprising. The Tribunal only has jurisdiction to judge the individual criminal liability of particular persons accused before it, and the relevant evidence will therefore be limited to the sphere of operations of the accused.

Fourthly, genocide is definitionally a complex crime in the sense that unlike homicide it takes time to achieve, requires repetitiveness, and is committed by many persons and organs acting
in concert. As such, it cannot be appreciated in a disconnected manner. Unfortunately, there are
instances in the Judgment where this happens, including on crucial issues such as FRY
responsibility for the genocide at Srebrenica.

Belgrade’s knowledge of the more general operations in Srebrenica - those geared toward “taking the town” - is amply established. In addition, Carl Bildt (European negotiator) met twice with President Milošević and General Mladić together in the midst of the takeover of Srebrenica and the subsequent massacre. It is also accepted that General Mladić’s promotion to the rank of Colonel General was handled in Belgrade, and the Respondent’s claim that this last part was no more than some administrative confirmation of a decision made in Pale is unconvincing. The Secretary-General’s report on the fall of Srebrenica relates that Mr. Bildt was joined in his
meeting with President Milošević on 14 July by General Mladić - which is the period during
which the Court determined that the decision to eliminate physically the whole of the adult male
population of the Muslim community of Srebrenica was taken (Judgment, paragraph 423).

An even more disturbing feature in the Court’s reasoning is evident in its treatment of the Serbian paramilitary units known as the “Scorpions” (Judgment, paragraphs 289, 389 and 395). Thus, paragraph 389 of the Judgment considers two documents presented by the Applicant, in which there is reference to the “Scorpions” as “MUP of Serbia” and a “unit of Ministry of Interiors of Serbia”. The paragraph notes that the authenticity of the documents was disputed by the Respondent presumably because “they were copies of intercepts, but not originals”. But it is plain that if the Court insisted on original documents, it would never be able to render any judgments. Be this as it may, the other reason advanced to undermine the importance of these documents is that they are not addressed to Belgrade, the senders being “officials of the police forces of the Republika Srpska”. But this in itself does not deny their probative value. When an official of the Republika Srpska sends a telegram to his superior in which the Scorpions are described as “MUP of Serbia” or “a unit of Ministry of Interiors of Serbia”, there is no reason to doubt the veracity of this statement. Consequently, we have here a case of a unit which had been incorporated into the forces of the Respondent - though the date for that incorporation is in dispute - yet the Court concludes that they are not to be treated as de jure organs of the Respondent in 1995, notwithstanding evidence that they were perceived to be such by the Republika Srpska officials.

Equally surprising is the Court’s treatment of the statement by the Government of Serbia and Montenegro – after Milošević’s fall from power - to the effect that what happened in Srebrenica was not the work of Serbia, but of the ousted régime. This statement was in fact occasioned by the showing, on national and international television, of the shocking images of the brutal execution of six Muslim prisoners in Trnovo, near Srebrenica, by the Scorpions. The Court failed to take account of this closely connected fact in its appreciation of the status of the Scorpions.

Full dissenting statement: http://www.icj-cij.org/icjwww/idocket/ibhy/ibhyjudgment/ibhy_ijudgment_20070226_frame.htm

Full text of ICJ judgement (351 pages): http://www.icj-cij.org/icjwww/idocket/ibhy/ibhyjudgment/ibhy_ijudgment_20070226_frame.htm

Footnotes:

(1) I call ‘Living Marxism’, the main promoter of Serb chauvinist ideology among the left in the 1990s, a “suspicious” group because at a certain point after the end of the 1990s, the entire leadership instantly turned counterrevolutionary overnight, and began working in top jobs for the Economist Intelligence Unit, as consultants for the “war on terror”, as apologists for GM crops and the nuclear industry, in joint campaigns with far-right “libertarians,” you name it, they’re up there. I am afraid I cannot believe that such an instantaneous and en masse conversion can occur in reality. My only conclusion is that they were something other than legitimate before their alleged “turn.”

(2) The Strategic Goals were as follows: (1) Separation as a state from the other two ethnic communities; (2) a corridor between Sermberija and Krajina; (3) the establishment of a corridor in the Drina River valley, i.e., the elimination of the border between Serbian states; (4) the establishment of a border on the Una and Neretva rivers; and (5) the division of the city of Sarajevo into a Serbian part and a Muslim part, and the establishment of effective State authorities within each part (Judgment, paragraph 371)