Bosnia-Herzegovina will win its law suit in The Hague
by Interview with Srda Popovic
Dani: The first phase of Bosnia-Herzegovina’s litigation for genocide against FRY (for the moment Serbia-Montenegro) before the International Court of Justice (ICJ) is nearing its end. The concluding addresses of the two parties, which will end the public part of the trial, are about to be completed. What happens next?
Popović: I think that Bosnia will win the case. It is a matter of deciding on three issues. First, did genocide happen? It did, and I cannot think of any argument that could refute it. The second question is whether FRY instigated, aided and participated in it. I think that there is much evidence of this, based primarily on statements made by Radovan Karadžić and Ratko Mladić. Both have insisted that they would never have been able to wage the war without Serbia’s help. Mladić has admitted that 98% of their ammunition came from FRY, the ammunition used to shell Sarajevo for four years. Four million shells came from Serbia. They themselves have said that they had not a single tank, aircraft or gun - it all came from Serbia. We know that so-called volunteers were sent to Bosnia from Serbia. We know that Milošević himself declared that he had paid for the war by printing money. People here [in Serbia] have not realised yet that the inflation they experienced was the result of paying for the war. Milošević supplied 95% of the budgets of the Republika Srpska Krajina [in Croatia] and Republika Srpska. The last question, upon which the Serbian side pins its greatest hopes, is that of the Court’s competency. I myself think that there is no problem here, although it is not easy to explain this to the wider public, not least because of the great efforts being made to befog the issue. In addition, there is the question of so-called intent: whether there was the intention to commit genocide.
The Court ruled itself not to be competent in the case of NATO’s bombing of FRY, yet you say that in this case it is?
It is difficult to explain to the public that a materially identical situation may obtain in two disputes, yet different reasons can lead to different results. The facts are the same, but not the procedure. At the start of this dispute, when the competency of the Court was being decided, FRY accepted its competency. So in 1996 it was decided that the Court was competent, because FRY had no objection to it; FRY itself submitted charges to the same court. Tibor Varadi [of the Serbian legal team] subsequently tried to get a revision of the decision on competency. This relates to a special procedure in which a verdict is re-examined in the light of new evidence. The ICJ did re-examine its original decision and found that there was no new evidence, so that revision was ruled out. It was not even necessary to make a new decision in this regard. This is what is being misrepresented in Serbia. As to whether FRY was a member of the UN or not, this is quite irrelevant. There is simply no legal way of changing the decision on competency, given FRY’s acceptance, even if the Court wished to do so.
Why are the Serbian team trying to do so then?
Out of despair. Tibor Varadi himself has said that Serbia’s case is very weak, if revision is not accepted. In other words, it will be easy to establish that genocide took place and that Serbia participated in it, so the only hope rested on being able to challenge the competency of the Court. So they find it difficult to let go of what for them is their only argument. There is the procedural explanation of a technical nature why it cannot be done, but there is also another side to it. I have read the Court’s decisions in regard both to the NATO case and to this one. I was impressed by the argument that genocide is a criminal act of universal jurisdiction, because it is humanity that was harmed, not Bosniaks, Albanians or Croats as such.
It is a crime against humanity?
It is a crime against humanity, which can therefore be tried anywhere. It is impossible to imagine that someone could attempt to justify it by saying that the state was falling apart at that time. No one could raise the issue of break-up and anarchy, because it is precisely in such situations that genocides occur. If this logic were accepted, then it would be impossible to pursue the charge of genocide or establish responsibility in the very conditions in which it takes place. This is a very powerful philosophical-legal argument. People do not understand that the International Court of Justice makes its decisions freely, on the basis of universal principles and international conventions, but also unwritten rules of international relations, and that its judgements rely also on accepted authorities. It is, in other words, an international court which tries to influence through its decisions international relations in the world as a whole. You cannot thwart it by using cheap tricks. The judges that sit on it used to be supreme court presidents in their own countries, advisers to heads of state, highly qualified law-faculty professors. When you read its decisions and see how they debate them, and on the other hand see how this is presented in the Serbian media, you can only be astonished.
Additional confusion is caused by the fact that the Court’s procedure differs from that followed by the Hague tribunal (ICTY), with which the public has in a way become familiar.
This is because in this case we are dealing with a law suit. Law suits are everywhere based on written evidence. We [in Serbia] do not know that the Court documents contain 45 recorded conversations between Mladić and Milošević. This is not the Hague tribunal, which displayd everything on TV; in this case it will be shown in camera, when the decision is reached. In regard to the question of intent, the Serbian side has created total confusion by claiming that the state will be on trial for the crime of genocide. This is not so: the state is being sued for compensation for the damage it has caused by participating in, aiding and abetting genocide. It is true that the crime of genocide is qualified by the intent to destroy part of an ethnic population. But genocide can exist without a single person being convicted for it. One side systematically killed eight thousand Muslims. What is that, if not genocide? It matters not whether someone has been found guilty, the intention was there: the Muslims were selected in order to be killed.
Serbian lawyers argue that there must be a written record of the intent.
There is much confusion in this regard. The criminal code specifies over 50 criminal acts that are defined as intentional. It is not a speciality of genocide. A trial can establish intent in two ways: by the defendant’s admission (which never happens), or by deducing it from the objective conditions. This is common practice throughout the world, not only at The Hague.
Logic, in other words, provides a strong basis for reaching a verdict.
We [Serbia] are a lawless state that adores legal formalities. It is impossible to conduct a trial without understanding human actions, based on living experience. Trials are based on common-sense, on what we have learnt through experience - this is a large part of the law. In order to be able to judge, you must know the people, the mentality, the customs; otherwise you will not understand anything, because everything takes place in a given context.
To what extent will the proceedings of the Hague Tribunal influence the decisions of the ICJ?
I have never thought that they would make much difference. It could be a factor, for instance, that General Krstić has been found guilty of participating in genocide. But it would not be the only or the decisive one.
There is much public dissatisfaction here in Bosnia with the way in which its case is being presented. It is being said that it has not been properly established, that the lawyers involved are not properly qualified. What do you think?
I have had the opportunity to read the charge only at an early stage. But there is a large amount of established evidence in this regard. Not long ago we saw a film about the four-year bombardment of Sarajevo. The whole world day in and day out watched the city being shelled. It is necessary, of course, to present evidence; but I think that the concern is unfounded. As for the Serbian side, it has lost all hope. After Srebrenica, the Scorpions and everything else ... it is not difficult to imagine what was happening over there.
I find it difficult to understand the behaviour of the Serbian legal team.
Many things which they say publicly show the extent of their ignorance. Thus Radoslav Stojanović [its head] says that the Serb people never had the intention of destroying the Muslim people. Is this how they plan to defend the Serbian state? It is the state, not the people, that is being charged. A state is a legal subject represented by its government, its president - it is they who are responsible. A mystery is being created over the nature of the legal procedure. I was astonished to hear Tibor Varadi say that the Hungarians and Bosniaks [of Serbia] too will have to pay for it! But of course - Serbia is also their state.
One cannot deny Professor Varadi’s anti-Milošević commitment. Now, however, he has placed himself in the situation of defending what Milošević did.
I can understand him a little. Tibor Varadi is an academic and a legal expert. But he finds himself in the role of a lawyer, which does not suit him, and he gets carried away. His pride seems to demand all the talk about the Court’s competency, because he thinks that proving this reckless theory would for him be a professional success. An experienced lawyer would never fly off like that.
Radoslav Stojanović, another academic, has stated before the Court that the Serbs feared that what happened to them in 1941 would happen again. This was later interpreted as an admission of guilt.
It would mean that it was a preventive genocide. Hitler too did that: he took preventive action against the Jews. This is most unserious behaviour. It would be best, in my view, for the state to create some kind of think tank to oversee its case, and to send only lawyers to the court. Lawyers would do a much better job than either of the two professors.
The trial is being used to prevent people in Serbia from facing up to the truth. As soon as anyone speaks about crimes, they are shut up with stories about war reparations.
That is another source of manipulation. There is talk of billions, although nobody has filed any such demand for reparations. Reparations are in principle decided on the basis of the economic capacity of the guilty party. They can be repaid over a long time and, of course, as in the case of individuals, not in a manner that would endanger the state’s existence. I have frequently heard that the Bosnians care most about establishing the truth, since they experience the denials and lies coming from Serbia as an additional insult after the crimes committed against them. I am sure that none of them is ready to withdraw the charge or to settle out of court, unless the settlement involves an admission of genocide. This is the most serious motive for bringing the charge. The Serbian side has made some dreadful statements. There was the statement made by Vladislav Jovanović, FRY’s ambassador to the UN, quoted in court. At the time when the Vance-Owen Plan was being proposed, he said that the Serbians should not worry because no one has ever paid reparations. In other words, they had considered the issue of responsibility. The minutes of their Council for National Strategy are on file at the Court. They show that the Serbian politicians tried to persuade the Bosnian Serb politicians to accept the Plan. The Council included the representatives of FRY, Krajina, RS, the Army of Yugoslavia, the Army of RS and the Army of Krajina. Momir Bulatović said at one of its meetings: ‘We have seized everything, we must now accept it [the Plan], while our ultimate aim - the unification of Serb territories - we shall leave for another occasion.’ Milošević said something similar: ‘We have succeeded in gathering up the Serb people, it is unimportant whether in one or three republics, but in time we can achieve that too.’ In other words, they were quite open about their intentions. It is obvious that there was the closest collaboration in political, military and financial matters.
It was also obvious that the international peacekeeping forces allowed them to retain the conquered territory.
Very true. The American side (I saw this while I was in the USA), which did not have the stomach to intervene to end the war, came up with the idea of peacekeeping because it knew that there would be no intervention for as long as those forces were deployed on the ground. It was a good excuse. It was used for this purpose until the political will emerged for intervention, even though chapter seven of the UN charter contains the obligation to prevent genocide. But no one wished to do that. There were more important issues in the world, there were also the domestic elections, etc.
What is the Court’s attitude to Belgrade’s poor cooperation with the Hague tribunal?
It was an additional argument of the Bosnian side that Serbia continues to infringe the convention on genocide. SCG, which is obliged to punish the perpetrator, holds the man who has been indicted as the main actor in the Srebrenica event, knows where he is - and all this after the fall of Milošević. The state has been consciously protecting a man whom it is obliged to try or hand over to the Hague tribunal. This was a very serious argument raised in response to Stojanović’s insistence that the Serbian state cannot be held responsible for the actions of the previous regime. That is irrelevant in any case, since regimes are not legal subjects. The new regime too is infringing the convention on genocide, by consciously hiding the accused, by not arresting them, punishing them or delivering them.
The Court, therefore, must in the first instance decide the question of genocide. What is then the procedure for establishing the level of reparations?
It is possible to submit to the Court a demand for reparations. The Court then decides in accordance with its sense of what would be just. It is accepted that the damage cannot be recompensed, but that something can be done at a symbolic level. The damage, especially in regard to loss of life, is irreparable. People forget too all those trucks which spent four years bringing looted goods to Serbia: money, goods, precious objects, cars, aircraft - everything that could be transported. All those goods are still in Serbia. The state has enlarged its wealth by that amount. And now everyone is surprised when they are told the time has come to pay for it.
Some argue that the responsibility of the International Court of Justice is even greater now that Milošević is dead.
I don’t think that they see it like that. It is true that politically speaking it has become even more important, but what do we mean by ‘even more important’? This is the first trial on a charge of genocide in history, which is of itself a momentous event in international law. Also for the country charged with genocide. Our press, however, treats it as if it were a matter of some minor trial in Kragujevac, Niš or Požarevac; as if one were dealing with a dispute over a land boundary. This is a sign of a pathological inability to grasp this country’s reality. This trial is for me of far greater importance than what happens in Montenegro or Kosovo. This is something that will mark us for centuries to come. But you would not know this, if you were reading the press or watching television. This shows that we are incapable of understanding events, what is important.
It was not understood either when the evil was being done.
There were efforts already then to diminish or ignore it. Serbian society remains in the same state of consciousness, does not understand what happened there. Then people like Miroslav Labus and Vuk Drašković (despite the fact that they are both lawyers) tell the Bosnian side it should not ‘play with fire’ and demand reparations for genocide, because that would disturb mutual relations. This is unbelievable cynicism and incomprehensible blindness. We have lost all human ability to judge how the other side will understand our words and moves, what it will think, the fact that we too are responsible for communication. We offend people needlessly.
Does this signify a loss of human qualities?
Well, we have lost many human feelings. We can no longer feel tragedy, because we have used the word for all manner of things. We no longer have any feeling for what is truly tragic. We are unable to feel tragedy, because everything is deliberately instrumentalized for political purposes. The only thing that matters is what serves our political interest. The human dimension remains completely overshadowed. We don’t even ask ourselves how it was possible for such people to govern us for more than a decade.
All the deadlines for surrendering Mladić have passed. Do you think that Mladić and Karadžić may never end up where they ought to? Could that happen?
That is not excluded, it could happen. We would then carry this for a long time within us, like the germ of a serious illness. We would carry them too within us, and they would spill like poison throughout Serbian society, because we would finally identify ourselves with them and decide to live with that identity. This would be very hard. Just how hard would be discovered by the innocent generations to come, just as the younger German generations found out when confronted with that poison.
Following Milošević’s death, the Hague tribunal was criticised by both its opponents and sympathisers. Could it have prevented the given outcome of his trial?
Although I support the Court and think well of it, I felt critical of it from the start in certain respects. For the Court, fearing complaints that it had limited the right of the defence, allowed Milošević to waste its time by making political speeches that had nothing to do with the charge or with court procedure. This greatly prolonged the trial and was unprofessional. It is not for the Court to worry how it might be seen, but to do its job. It was clearly a decision related to the political conditions of his trial.
Milošević’s lawyer Stephen Kay has criticized the Tribunal for combining 66 points into a single indictment. This, he argues, made it impossible to complete the trial, especially since the Court had no control over the area in question.
That is correct from a technical point of view. However, it is only when all the charges are joined together (for Kosovo, Bosnia-Herzegovina and Croatia) that one can gain the true perception that it was a single project based on a single logic, conducted by same methods and with the same army, and guided by the same hand. I think it was more logical to prosecute Milošević in the way it was done, though I am not sure it was necessary to include so many crimes. It would have been enough, perhaps, to select a few of the most striking and massive crimes (which could most easily be proved), rather than to exhaust oneself on every village in Kosovo or Bosnia. It is in fact difficult to prove solidly every single charge, because we are dealing with a project that went on for four years and extended over a large area, so demanded thousands of witnesses. It was constructed too ambitiously. But I think that it was necessary to charge Milošević with the whole lot, because that made it easier to see that it was all based on the same political platform.
Richard Holbrooke nevertheless believes that justice was better served by Milošević dying alone in a prison cell than by the four years of his trial. What is your view?
That is true only if you believe the sole aim of the trial was to punish the perpetrator. But that was not the only aim. Trials have two other and in my view more important goals: general prevention, and establishment of a new - Kant would say more ethical - legal system. It is beyond doubt that he suffered far less than his victims - but, yes, he was punished. However, the aim of the trial was not that alone; it was to strengthen in the world’s population the belief that crime does not pay. And that not even heads of state can escape responsibility. This was to be the verdict’s important message. In this sense justice was not done. On the other hand, I think that never before have crimes been so well documented as in these Balkan wars. Everyone in Serbia knows the essential truth, even though there is a reflex of denial, quite insincere, sometimes fully hypocritical and at other times linked to defiance and the need to ‘save the nation’s honour’. From the historical point of view all this is of short duration, as was the case in post-war Germany and Japan. It is difficult for any nation to assimilate a sensibility that so completely offends its system of values and its self-respect. But historical justice will one day be established in its full sense. There is no doubt about that.
Translated from Dani (Sarajevo), 12 May 2006