Preliminary comments (4 March 2007)by the Deputy Agent of Bosnia-Herzegovina before the International Court of Justice

NB These observations are preliminary, and should not be seen as representing the considered position of Bosnia's Legal Team.

1. The Court has now established in its Judgment (the longest in its history) that Serbia and Montenegro provided the Bosnian Serbs with extensive and substantial financial and military support throughout the war. It found that the Srebrenica massacre was committed, at least in part, with resources provided by Belgrade. These are the most authoritative factual findings available with respect to Serbia's role.

2. The Judgment contains a historic overview of the war in Bosnia-Herzegovina, including pages and pages listing the atrocities, the killings, the rapes, the sieges etc. The Court accepted all of our positions in this respect, based on the evidence we submitted. The Court rejected Serbia's objections to this evidence (including Serbia's infamous efforts to deny and to diminish the enormity of the massacre at Srebrenica).

3. Thus this Judgment certainly could - and should - be helpful in putting an end to the propaganda developed in Belgrade whose centrepiece has been a complete denial both of the fate of the Bosniaks and of any Serbian responsibility with respect to the human and material destruction visited upon Bosnia in 1992-5.

4. Concerning the meaning and relevance of the Genocide Convention, the Judgment contains several important findings, the first being that - as we submitted - States are, seen from a legal perspective, very well able to commit genocide. For non-lawyers this may sound obvious, but many (sometimes learned) lawyers have viewed this differently: some of the dissenting opinions reflect this position. These lawyers held that the Genocide Convention was meant merely to provide a framework with respect to the prevention and punishing of genocide committed by individuals. State parties to the Convention would, in this view, be under an obligation only to prevent individual perpetrators, and to bring them to justice. The Court is very clear on this issue and concludes that States may indeed be held responsible for committing genocide through their organs. This, of course, does not lead to criminal responsibility, but it does lead to civil/international responsibility.

5. The Court has then set a standard for establishing the commission of genocide, and has found that the threshold is very high: not only does it need to be proved that the perpetrator had the intent to kill (etc.) a certain group of the population; on top of that, the perpetrator’s intent to destroy - in whole or in part - this particular group needs to be proved conclusively. We felt we had lived up to our obligation to satisfy these conditions with respect to the entire conflict, but a large majority of the Judges found otherwise.

6. The Court did not ignore the nature of the atrocities that were committed in Bosnia outside Srebrenica, and considered that these may fall into the category of war crimes, more specifically crimes against humanity.

7. The largest possible majority of the Court agreed with respect to the Srebrenica massacre. The Judgment contains a breathtaking report on those July '95 days and concludes that the over-running of Srebrenica and the subsequent massacre of more than 7,000 boys and men qualifies as genocide. This is the first time in the history of the ICJ that it was called to pronounce on genocide, and so it did.

8. The Court ruled that the genocide in Srebrenica was committed by the army of Republika Srpska.

9. With respect to Serbia's responsibility for the massacre at Srebrenica, the Court could not conclude that Serbia was 'in control' of the Republika Srpska authorities or of the Bosnia Serbian Army. This is disappointing, since we felt that we had made the case in support of the control conclusion. In doing so, by the way, we were extremely limited in our possibilities, since Serbia refused to hand over the documents (minutes of meetings of Serbia's Supreme Defence Council) that would possibly have provided evidence for that. These documents had been handed over earlier to the ICTY, only under the condition (apparently accepted by Mrs Del Ponte) that part of these documents would be blacked out. It is a well known fact that the ‘blacking out’ took place in order not to damage Serbia's position in Bosnia's case before the ICJ.

10. Although we had - on various occasions - requested the Court to order the release of these documents, this request was not granted.

11. The next best option in relation to Serbia's responsibility for genocide in Bosnia would have been complicity, which we argued as an alternative. On this point too the Court ruled against us, stating that the precondition for complicity in genocide would be for the alleged perpetrator to be totally aware of the fact that genocide would indeed be committed. The Court considered that it was not crystal clear to it whether this type of knowledge in fact existed in Belgrade.

12. This part of the Judgment to me is the truly disappointing part, although some consolation is to be found in the eloquent and well-reasoned separate options of the four Judges who are on our side in this respect. For this issue too we were seriously handicapped by not having been able to produce the SDC minutes discussed above.

13. Nevertheless the Court did not stop at this point. It did indeed establish a positive relationship between the Srebrenica genocide and Belgrade, and found that Serbia had violated its very first obligation under the Genocide Convention, the obligation to prevent. Together with the earlier findings of the Court that Serbia had provided very extensive and crucial financial and military aid to the Bosnian Serbs, this finding of Serbia's violating the Genocide Convention helps to put Serbia's role in a proper perspective.

14. We should keep in mind that the Court considered that all of the atrocities committed against the Bosniaks were likely to fall under the category of crimes against humanity. Only because the Court does not have jurisdiction with respect to such crimes, it could not reach a final conclusion at this point. We also should keep in mind that the threshold for complicity in crimes against humanity does not come close to the huge threshold which - as the Court found - needs to be taken into consideration in order to prove complicity in genocide. In other words, I think it is not unreasonable to conclude on the basis of this Judgment that Serbia may be considered to be an accomplice in the commission of crimes against humanity by the Bosnian Serbs. Of course, this is only my interpretation, but it is certainly a reasoned opinion..

15. So the Serbia of Milosevic violated its legal obligation to prevent genocide from being committed. But the Court also found another violation of the Genocide Convention: Serbia has failed to hand over Mladic to ICTY. Handing over genocide suspects to a proper International Tribunal is an obligation for all State parties to the Convention (Art. VI). [This finding is also extremely relevant for ICTY, since it means that States providing shelter to genocide suspects wanted by ICTY will be violating the Genocide Convention (provided that they are a Party to the Convention, which most States are and all States should be)]

16. This particular violation of the Genocide Convention, established by the ICJ, is committed not only by Milosevic's Serbia, but also by the new Serbia. This violation continues today and tomorrow and after that, until Mladic is indeed handed over.

17. Since Serbia is the successor to Serbia and Montenegro, the Judgment is addressed to Serbia only. But the Court in its Judgment explicitly admonished Montenegro that it is also under an obligation to cooperate with ICTY. In other words, Mladic will not find a safe haven in Montenegro. Obviously the meaning of this stretches beyond Serbia and Montenegro: any State Party to the Convention will be violating the Genocide Convention if it provides shelter for Mladic and for other genocide suspects wanted by ICTY. Basically, given this Judgment, Mladic really has nowhere else to go except for Scheveningen. The same is obviously true for Karadzic.

18. I think incidentally that it should be considered impossible for the European Union to negotiate with Serbia about possible membership so long as this State continues to violate the Genocide Convention. Europe should never be seen as open to States that violate this Convention in particular.

19. All in all, it has been established that genocide occurred in Bosnia in 1992-5. More specifically, it has been established that the army of Republika Srpska committed genocide at Srebrenica. It is difficult to envisage this not having repercussions for reviewing the very make-up of Bosnia and its State Institutions.

20. It has further been established that the Genocide Convention does indeed function in practice, and that violating it has repercussions for the perpetrating State.

21. I am still somewhat too close to the case to be able to have an opinion as to whether the Court applied too high thresholds for its findings re direct responsibility and complicity. In any event, there will be numerous learned (and one un-learned) academics writing books and articles about this Judgment. That is also good for Bosnia-Herzegovina, since it will help to keep the memory alive of the first genocide that took place in Europe after World War II.