Bosnia-Herzegovina will win its law suit in The Hague
Author: - interview with Srda Popovic
Uploaded: Wednesday, 31 May, 2006
The former Yugoslavia's most eminent civil-rights lawyer interviewed for the Sarajevo weekly Dani by Milanka Šaponja-Hadžic
Dani: The first phase of Bosnia-Herzegovina’s litigation against FRY (now Serbia-Montenegro) for genocide 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. They 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, that 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, that 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 that 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 to befog the issue. In addition, there is the question of so-called intent: whether there was the intention to commit genocide.
It is often said that the Court was not 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 mis-represented 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 they 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 refer to 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 will display 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,