Serbia Cleared, Part 6
ICJ Ruling Backs ICTY’s Genocide-Redefinition to Fit Srebrenica Event
Report on the recent International Court of Justice’s ruling by Alex
The recent judgment from the ICJ that Serbia was not responsible nor took part in ‘act of genocide’ in Bosnia was a logical judgment despite all the criticism the court received. What is surprising is that the ICJ accepted the ICTY judgments wholesale, notably that it reconfirmed the ICTY’s judgment in the Krstic case that genocide occurred in Srebrenica, despite this court having redefined the definition of genocide. The ICJ ruling states:
The Court turns to the findings in the Krstic case, in which the Appeals Chamber endorsed the findings of the Trial Chamber in the following terms:
“In this case, having identified the protected group as the national group of Bosnian Muslims, the Trial Chamber concluded that the part the VRS Main Staff and Radislav Krstic targeted was the Bosnian Muslims of Srebrenica, or the Bosnian Muslims of Eastern Bosnia. This conclusion comports with the guidelines outlined above. The size of the Bosnian Muslim population in Srebrenica prior to its capture by the VRS forces in 1995 amounted to approximately forty thousand people. This represented not only the Muslim inhabitants of the Srebrenica municipality but also many Muslim refugees from the surrounding region. Although this population constituted only a small percentage of the overall Muslim population of Bosnia and Herzegovina at the time, the importance of the Muslim community of Srebrenica is not captured solely by its size.”
The Court sees no reason to disagree with the concordant findings of the Trial Chamber and the Appeals Chamber (#1 para. 296).
The ICTY employed strategy that worked as a triple whammy with the creation of a new ‘group’, dubious ‘intent’ and even more dubious ‘substantiality’ so that the events at Srebrenica would fit the classic definition of genocide. A large dose of spin/manipulation was applied to achieve this, which was in turn then wholly adopted by the ICJ:
The ICTY redefined ‘substantiality’, the primary factor in determining if genocide had taken place (#1 para. 198), by artificially restricting the area of the supposed genocide only to the town of Srebrenica (#1 para. 199). This conveniently loads the ‘statistics’ in the ICJ’s favor where the percentage of men of military age is only linked with the 35,000 population before the attack rather than Bosnia wide (as it did not support the Bosnian Muslim government claim in its application that Serbia had committed genocide throughout Bosnia).
Spur-of-the-Moment “Genocide” With No Intent
How did the ICJ prove ‘intent’? Well it didn’t. It quotes the Appeals chamber of the ICTY (#1 Para. 281) that said that the “directives were ‘insufficiently clear’ to establish specific intent (dolus specialis) on the part of Main Staff who issued them... Trial Chamber did not even find that those who issued Directives 7 and 7.1 had genocidal intent, concluding instead that the genocidal plan crystallized at a later stage” (#1 para. 292).
The Krstic trial chamber admitted that they did not know when the ‘decision was taken’ though they claimed that “...the Bosnian Serbs devised and implemented a plan to execute as many as possible of the military aged Bosnian Muslim men present in the enclave”. The ICTY decided that “the acts of genocide need not be premeditated and the intent may become the goal later in an operation”. Again it lowered the bar and now genocide could be a ‘spontaneous’ occurrence. On the one hand it claimed that “the transfer of the women and children supported its finding that some members of the VRS Main Staff intended to destroy the Bosnian Muslims in Srebrenica,” yet under the same breath contradicted themselves by saying that “...they targeted for extinction the forty thousand Bosnian Muslims living in Srebrenica, a group which was emblematic of the Bosnian Muslims in general” (#1 para. 293). Clearly moving people (ethnic cleansing if you will) has been promoted to give equivalence with genocide, though no such accusation is brought against the collapse of the Zepa and Gorazde enclaves.
Bosnian Muslim Women and Children Spared, Armed Soldiers Lose Their Life — Still an ‘Act of Genocide’
When considering what constitutes a ‘group’ as mentioned in the definition of genocide, this would normally be primarily considered to be women and children (and unarmed civilians) as they represent by far the most significant group being the fundamental source of continued existence of the group. Since no women and children had been killed by the VRS in the operation, having been bussed out to safety with the help of the UN, this door remained firmly shut to the court. Instead, “Bosnian Muslim men of military age at Srebrenica” (#1 para. 197), who were armed now constituted a new ‘group’ by the judges so that it could still fit comfortably within the definition of genocide. This is despite the fact that most of them were listed as soldiers of the 28th Division ABiH, were armed and had already left Srebrenica before the VRS arrived in an attempt to break through to Tuzla (#2 Dutch NIOD report). The relevance of this fact seems to have been entirely ignored by the Judges as can be seen in the judgment by the lack of the word ‘soldiers.’ They preferred the rather ambiguous and general term ‘Bosnian Muslim men of military age’.
The irony is that the ICJ ruling comments that the ICTY saw the risk of ‘redefining genocide’ yet did so itself by accepting the ICTY’s judgments:
“This criterion of opportunity must however be weighed against the first and essential factor of substantiality. It may be that the opportunity available to the alleged perpetrator is so limited that the substantiality criterion is not met. The Court observes that the ICTY Trial Chamber has indeed indicated the need for caution, lest this approach might distort the definition of genocide (Stakic, IT-97-24-T, Judgment, 31 July 2003, para. 523)” (#1 para. 199).
Clearly the judges did not think it relevant to compare the disputed facts around Srebrenica to very clear cases of genocide (for example in Cambodia and Rwanda) so they had to create their own special meaning of genocide.
ICTY Specifically Created to Blame Serbs for the Wars
Therefore, the ICTY finding is no surprise as it was specifically created to find the Serbs guilty for the wars in the former Yugoslavia, but as for the ICJ and in light of the ICTY judgment, would it have been reasonable for it to have contradicted the ‘genocide’ judgment (especially considering all the political capital that had been invested in the ICTY)? Maybe the sentence “the Court sees no reason to disagree with the concordant findings of the Trial Chamber and the Appeals Chamber” (#1 para. 296) says it all, i.e. ‘this hornet’s nest is best left alone’? It did indeed reject the Bosnia-wide genocide accusation which is already quite a defeat for the Bosnian Muslims and their supporters.
The ICJ did also take note that Srebrenica was classified as “a safe-area,” according to an extensive report by the Netherlands Institute for War Documentation (“NIOD Report,” #2), and wrote “there is no evidence to suggest any political or military liaison with Belgrade, and in the case of this mass murder such a liaison is highly improbable” (#1 para. 410), even though it did accept Wesley Clark’s testimony (which Milosevic denied) “ Well, General Clark, I warned him not to do this, but he didn’t listen to me” (#1 para. 437).
The report itself brings to light many more details of the events in Srebrenica along with many spurious and improbable stories (they were allegedly attacked with “poison gas grenades” and that the “Cetniks in civilian clothes who posed as guides and then led people to the VRS lines”).
Questions ICJ has Failed to Ask
Further reading into the NIOD report would have cast more light on the situation of Srebrenica and would have made it much more clear that, if anything, the situation was far more complicated than the presented — VRS versus civilians.
The ICJ should have asked some of the following questions:
- How many of the “men of military age” were listed as members of the ABiH? (#3)
- How many of them were armed (the NIOD report disproves that they were, as claimed by some, unarmed civilians)?
- How many died in combat (killed in ambushes) and/or fired upon each other in the confusion on the way to Tuzla?
- How many were actually executed and if so, were any of these a result of summary justice in the field, i.e. for war crimes committed against Serb civilians in the surrounding area since 1992?
- What solid evidence do they have to support the 7,000 claim, apart from merely accepting the ICTY figures?
- Does the 7,000 number include those killed in the combat?
- What role did the Bosnian Muslim government play in the event and does it bear some responsibility itself (#4,#5) and was it complicit by recalling to Sarajevo its commander, Srebrenica’s Nasir Oric (and senior officers) in April, and in their failure to return to Srebrenica prior to the attack (#6), leaving the remaining 28th [Bosnian Muslim] Division without its most experienced officers, thus seriously weakening its defense?
Opening Dozens of Earlier International Conflicts to Scrutiny in the Light of Redefined Genocide
Considering how the ICTY (accepted by the ICJ) changed the rules so that genocide in Srebrenica would be ‘proved,’ they not only illegally redefined genocide globally, but they demeaned it in a way that it no longer is set apart from other crimes. Using the new definitions, we can easily reclassify dozens of events in twentieth century history as ‘genocide,’ starting for example with the British during the second Boer War (#7). So if there is talk of ‘revisionism’ in history, the ICTY and the ICJ have shown clear support for it. This, at a time when a German government at the helm of the EU Presidency wants to make the ‘denial of genocide’ a criminal offense Europe-wide. It raises seriously uncomfortable questions. Who will be the guardians of the ‘official truth’ and what is to stop them (as we see with the ICTY and ICJ rulings) from effectively revising history themselves? It then becomes a political minefield, let alone a threat to those historians who have no ax to grind when researching historical events.
Some have called the ruling by the ICJ ‘political,’ like the former judge of the ICTY Antonio Cassese who claims that the standard of evidence required to convict a state of genocide is too high (#8). As the presiding judge at the ICTY, he applied the low levels of proof, managing to convict innocent people, who were then completely cleared by the appeal ruling (#9, Kupresic).
The ICJ explicitly states:
“The Court has long recognized that claims against a State involving charges of exceptional gravity must be proved by evidence that is fully conclusive. It requires that it be fully convinced that allegations made in the proceedings, that the crime of genocide or the other acts enumerated in Article III have been committed, have been clearly established. The same standard applies to the proof of attribution for such acts.”
It unquestionably leaves no ‘wiggle room’ or fudging, clearly to the disgust of the pro-genocide lobby. It already follows the clear precedent of Nicaragua V. United States (#10)
Should United States Be Immune from the World Court Trial?
These same people attack the credibility of the ICJ yet seem to have no qualms with how the ICTY is operated and how it reaches its judgments. The ICJ is a court of 60 years standing with a global reputation. Whilst a ruling that Serbia had committed genocide in Bosnia would have gone down well in the West, it certainly would have not been accepted by the rest of the world (the ‘West’ is not, as is commonly held by the politicians and the media, synonymous with ‘the World’). It would not only have destroyed the credibility of the ICJ as an institution, which quite probably would have lead to a loss of cooperation at state level, it would have by proxy undermined the nascent International Criminal Court (ICC) which is based on very similar principles (unlike the extremely flawed ICTY). Whilst no outside powers were ever threatened by the ICTY rulings, big powers such as the United States are extremely wary of finding themselves equal to every other state before the ICJ and especially the ICC, where it does not have de facto immunity from the ICC. This is why the U.S. has applied substantial pressure on its allies to grant its citizens immunity in the form of bilateral agreements, despite undermining at last a court where technically everyone is held equal.
ICTY — a Kangaroo Court
By comparison, the ICTY is an ad hoc tribunal (due to close in 2010) that is drawn with very narrow terms of reference that excludes indicting the actions of outside interests that indirectly took part in the former Yugoslavia. So in reality it cannot be considered an impartial and independent on the level of the ICJ & ICC and its own limited nature means that it looks no further than its own interests. Its basic failings have already been highlighted in much more detail by others. Most significantly it often changed its own legal procedures, accepted hearsay evidence and violated its own statutes on funding (which should have come directly from the UN, but mostly came from the US). US researchers at the Hague were secretive and isolated themselves and refused to share material with their colleagues.
Much more significant is that the ICTY accepted ‘evidence’ as untainted from countries that were indirectly involved militarily in the former Yugoslavia with the US and Germany (including Iran and others) providing weapons indirectly and directly (#11, NIOD report), to warring parties along with military intelligence etc. The United States provided military training to the Croatians via a ‘private’ company — Military Professional Resources Incorporated (MPRI) — that was essentially a deniable extension of the U.S. military (#12 like Air America), whilst the Germans provided the bulk of the weapons from ex-East German stocks. If Tudjman could be indicted by the ICTY for the ethnic cleansing of Serbs from Krajina, then logically the US which has assisted the planning and training of the Croatian offensive would have also found itself in the dock, accused at minimum of aiding and abetting a military enterprise that would lead to war crimes, and of not using its influence to stop the war crimes. Could the U.S. plead ignorance to the Croatian aim of entirely cleansing the Krajina of Serbs? The question remains hypothetical as I mentioned before, the ICTY’s remit excludes actions of those not from the region.
In May of 1999, the ICTY (at the time under its then Chief Prosecutor Louise Arbour) succumbed to pressure from the United States to indict Slobodan Milosevic, shortly after NATO started bombing Serbia. On what legal grounds was this done? The only evidence presented was by one side in a conflict where the “evidence” was far from conclusive and often pure propaganda, such as vacuous accusations from the State Department itself (#13):
“ ...There are still 100,000 men that we are unable to account for, simply based on the number of men that ought to have accompanied women and children into Macedonia and Albania. Based on past practice, it is chilling to think where those 100,000 men are. We don’t know. We know that civilian casualties are the objective of President Milosevic’s policy.”
This should have finally destroyed any credibility of the ICTY, but it didn’t since far too much had been vested in it from the outset. Even the great majority of the western media ignored this blatant partisanship and hypocrisy and continues to do so to this day.
Still, somehow despite all this, the ICJ made a ‘political decision’ and is viewed as less credible than the ICTY!
Bosnian Muslim Exclusive Right to the Status of a “Protected Group”
The ICJ’s ruling did incorporate an important criticism of the Bosnian Muslim government’s application:
“Definition of the protected group...
...the Applicant refers to “the non-Serb national, ethnical or religious group within, but not limited to, the territory of Bosnia and Herzegovina, including in particular the Muslim population”. It thus follows what is termed the negative approach to the definition of the protected group under the Convention.
“... It is a group which must have particular positive characteristics — national, ethnical, racial or religious — and not the lack of them. This interpretation is confirmed by the drafting history of the Convention.”
Accordingly, the Court concludes that it should deal with the matter on the basis that the targeted group must in law be defined positively and thus not negatively as the “non-Serb” population. The Applicant has made only very limited reference to the non-Serb populations of Bosnia and Herzegovina other than the Bosnian Muslims, e.g. the Croats. The Court will therefore examine the facts of the case on the basis that genocide may be found to have been committed if an intent to destroy the Bosnian Muslims, as a group, in whole or in part, can be established.” (#1 paras. 192 to 196).
It appears in effect to be criticizing the Bosnian Muslims for weakening their own case by excluding the Bosnian Croats from Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia — Serbia and Montenegro). In 1993, Professor of International Law at the University of Illinois, Francis Boyle, international humanitarian law expert and crusader (#14), who served as advisor to then President of Bosnian Muslim government Alija Izetbegovic and suggested that they launch a case against Serbia in the UN for genocide. His position was the Bosnian Croats should be included in the case to bolster its chances of successes. Later Boyle was kicked out from the team, the Bosnian Muslims deciding not to include the Bosnian Croats in their application. Why was this? Looking at the timing, it was most likely because of the British Army, on discovering the massacres by the Croatian forces in central Bosnia (Ahmici), ignored protocol by bringing journalists to the scene (thus infuriating the British Foreign Office), which entirely changed the situation. It was no longer tenable to keep the Bosnian Croats in the application, either domestic or international. In a sense, the Bosnian Muslim government had no choice.
Notes:
#1 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro) Summary of the Judgment of 26 February 2007.
#2 Netherlands Institute for War Documentation, 2002
#3 “Genocide is not a matter of numbers” In an interview of Mirsad Tokaca by Emir Suljagic, published in Dani, Sarajevo December 23 2005, Emir Suljagic asks:
“But what about the thousands who were listed as soldiers, but were in fact civilians? In the case of Srebrenica, for example, thousands were listed as soldiers, since that was the only way for their families to survive, given that the state did not have the means to look after civilians. How are these dead classified?”.
Tokaca replies:
“It is not part of my task to separate them out. If the state reports them as soldiers, then we classify them as military casualties. I too have evidence that not all of them were active soldiers. If, say, I have three sources, one of which is official, and if the official source insists that the dead person was a soldier, then what can I do? This is a problem for the state to solve.”
Clearly the Bosnian Muslims themselves accept that many of the men ‘were listed as soldiers,’ despite the obvious attempt to downplay this. The ICJ ruling makes little mention of ‘soldiers,’ but often that of ‘men and boys,’ or when quoting from the ICTY cases ‘men of military age’. Why is this so difficult to accept?
#4 “5,000 Muslim Lives for Military Intervention” Interview with Hakija Meholjic, president of Social Democratic Party for Srebrenica. Published in Dani, Sarajevo June 22 1998.
#5 “Presidency and Army Command Sacrificed Srebrenica” Interview of Ibran Mustafic, representative in Bosnian and Federal Parliaments, founder of SDA in Srebrenica. Published in Slobodna Bosna, Sarajevo, Bosnia-Hercegovina, 14 July 1996.
#6 NIOD Report, Chapter 4 The mood in the enclave: May - July 1995. 8. The absence of Naser Oric
#8 “The ICJ applied too high a burden of proof on Srebrenica” The Daily Star, Lebanon, 1 March 2007. “A judicial massacre”, The Guardian, February 27 2007.
#9 “Summary of Judgement in the Kupreskic Appeal” ICTY (IT-95-16) The appeals court found that:
“The conviction of one defendant, Vlatko Kupreskic, hinges upon a finely woven web of circumstantial evidence that was accepted as proof, beyond reasonable doubt, of his guilt. In the case of the remaining four defendants, their guilt has been determined principally on the basis of a single witness who placed them at a particular location when a murder or expulsion occurred.”
Also:
“On appeal Vlatko Kupreskic has argued that the Trial Chamber’s factual findings about his involvement in the attack had no basis in the evidence to begin with and, second, that additional evidence admitted on appeal served to underscore the extreme weakness of the case against him.”
#10 Nicaragua v. United States
#11 NIOD Report, “Appendix II, Intelligence and the war in Bosnia 1992—1995: The role of the intelligence and security services”
#12 Air America
#13 See U.S. Department of State Daily Press Briefing, Monday, April 19, 1999. Briefer: James P. Rubin
#14 Francis Boyle
Cartoon by D. Stojanovic (Serbia)