Regarding the possible existence of responsibility for genocide on the part of Slobodan Milošević (before the tribunal at The Hague) and on the part of our state (before the International Court of Justice), Professor Vojin Dimitrijević in the first issue of the new magazine Forum expresses serious doubts that any such responsibility exists. He advances three reasons.

Why no genocide?

First reason: ‘The Hague tribunal has so far rejected all charges of genocide, other than in the judgement of first instance against General Krstić, which is not final.’ This incomplete induction is adduced to suggest the conclusion that no genocide was involved here.

In the meantime, of course, the judgement against General Krstić has become final; and one single case of a criminal sentence is enough for us to conclude (this time properly) that the existence of genocide has been confirmed by a judicial ruling.

Does this affect the position of Professor Dimitrijević? We don’t know, we haven’t heard.

Second reason: ‘The rational reasons boil down to concern that all citizens of Serbia and Montenegro should not pay for the policy of the former president and his camarilla. Milošević’s conviction for genocide could become a liability for the entire state. It is the only criminal act for which a state can be responsible; otherwise it is not answerable criminally.’

Let’s begin from the end. The International Court of Justice is not a criminal court and our state is not answering criminally before it. A state is never answerable for criminal acts, not even before that court, nor even for genocide. A state is answerable for the consequences of any criminal act committed in the course of duty by its elected bodies, its administration, army, police, etc. A state always and everywhere answers for such consequences, as well as for every other injury its organs may commit in the course of duty (e.g. illegal detention).

Professor Dimitrijević represents it as a kind of paradox that the state should answer for an injury committed by its organs. But he really means that it is in some way ‘not right’ that we should all pay now for the sins of our state (its organs). What do the actions of our president or our generals have to do with us?

Well, that is not quite how things stand, especially when it is known that this president was chosen by acclamation and then voted in four times in (various) presidential elections, the last time in the revolutionary year 2000 with two million votes. Is Professor Dimitrijević arguing that the electors are not responsible for the votes they cast? That the electorate is not responsible? It certainly did behave irresponsibly, but the decision of the majority binds everyone. What is ‘irrational’ about that?

When he calls this second reason ‘rational’, Professor Dimitrijević really means it is understandable that having to pay the bill now is disagreeable. However, doing so is always disagreeable for a debtor, who ‘rationally’ does not want to pay his debt. But is this a legal reason for a court to absolve him of that debt?

Third reason: ‘The criteria laid down by the Genocide Convention are strict. However dreadful the mass perpetration of crimes has been, it does not constitute genocide without the genocidal intent of ‘destroying fully or in part a national, ethnic, racial or religious community’. For this [intent: S.P.] to be established, it is necessary to find evidence of the kind the Nuremberg Tribunal had in the shape of a written record [my emphasis: S.P.] from the Wannsee conference, when the top leaders of Nazi Germany decided to proceed with a brutal ‘final solution’ to the Jewish question.’

The clear implication is that Professor Dimitrijević thinks those top Nazi leaders were tried for genocide at Nuremberg, and that this was possible because they were careless enough to record their genocidal intentions. Nothing of the kind occurred.

The Nuremberg Tribunal did not confirm any genocidal intent, because it was not even trying genocide, so its practice in this respect cannot constitute any kind of legal precedent. To be precise, at the time of the Nuremberg trials such a criminal act did not even exist. The concept itself and its definition were provided only by a Resolution of the UN General Assembly at its first session on 11 December 1946, while the Nuremberg trials ended on 1 October 1946. So the Nuremberg Tribunal did not confirm any genocidal intent, and accordingly neither could it outline the methodology by means of which such an intent might be established.

After (incorrectly) determining that in order to establish a genocidal intent ‘it is necessary to find a written record’, Professor Dimitrijević reminds us that ‘no such document has yet been found implicating the political elite of FRY and its allies and associates’.

According to Professor Dimitrijević , therefore, without ‘a written record’ or some ‘such document’ intent cannot be proved, and without intent there is no genocide, ergo neither

Milošević nor FRY can be responsible for any kind of genocide. Quod erat demonstrandum!

Let us leave aside the responsibility of FRY - since in the case before the International Court of Justice, which is not a criminal court, other rules of proof apply requiring a lower degree of certainty - and let us confine ourselves to proof of Slobodan Milošević’s responsibility before a criminal court.

Proving intent

The whole story about so-called insurmountable difficulties in proving intent is a crude mystification. It is hard to avoid the impression that it is motivated simply by fear lest such intentions be proved; by a secret wish that this should not occur (for ‘rational’ reasons, of course).

For courts everywhere - hence, in our country too - daily establish the intentions of perpetrators in hundreds of cases. It is thus quite wrong to present genocide as some kind of special case requiring the establishment of intent. ‘The criteria laid down by the Genocide Convention are strict’, because they require the existence of intent to be established: well, criteria are equally ‘strict’ for all criminal acts for which it is necessary to establish intent.

Let us take perhaps the most banal of all criminal acts - theft. Theft is defined as ‘the seizure of another person’s movables with the intent of usurping them to procure illegal gain for oneself or another’. So it is necessary to establish ‘intent’. Well, is that really a problem? Do courts not do that in hundreds or thousands of cases daily, without any kind of problem? Even when the thief does not leave a written record (‘or similar document’) regarding the intent of the usurpation. A thief extracts your wallet from your pocket and runs off down the street. What was his intent? In a single week, 7,000 people of a different ethnic group are systematically massacred. What was the intent? You have paid the army that did this, sent it arms and ammunition, hidden the direct perpetrators. What was your intent? How is it to be ‘established’ without a ‘written record’?

This and other such supposed ‘anxieties’ and jeremiads concerning the ‘Prosecution’s difficulties’ have been present since the outset of the trial. There is nothing mysterious or unfathomable about establishing intent. We all do it in personal contacts every day. In a criminal proceeding, the fact that intent exists is established by all kinds of evidence; and a conclusion may be drawn about it from the standpoint of sane reason and normal human experience, taking into account all the circumstances of the event (such as, for example, Karadžić’s early statement that ‘there will be no Moslems in Bosnia’; or the nature of the relationship between Slobodan Milošević and Karadžić; or the concealment of Mladić after the genocidal massacre at Srebrenica; or the dispatch of armed ‘volunteers’ to Bosnia; or the links between the army of Republika Srpska (VRS) and the FRY army (VJ); or the arrest of deserters from the VRS, and their forcible return to Bosnia-Herzegovina; and so on).

On an earlier occasion (see Bosnia Report 38-40, p.26), doubts were expressed about the ‘advice’ that Professor Dimitrijević sends to the Prosecution of the Hague tribunal: i.e. that it should not press too hard about handing over [indictees], since as a result of such pressure ‘there is resistance’ in Serbia, and it might happen that we break off cooperation with the Hague tribunal altogether. The question arises whether Professor Dimitrijević, with such lines of argument, does not in fact - at least objectively - himself encourage such resistance.

This article has been translated from Helsinška povelja (Belgrade), June-July 2004.