["We want to bring justice and reconciliation to the former Yugoslavia," ]
A nation on trial for its past
Serbia and Montenegro may become the first country to be found guilty of genocide.
By Peter Ford and Beth Kampschror
PARIS AND SKOPJE, MACEDONIA - Serbia and Montenegro, already struggling to find its place in Europe, risks becoming the first state ever to be formally branded genocidal, as judges at the World Bank last week began hearing arguments in a Bosnian lawsuit over crimes committed during the war in the early 1990s.
The case could make Serbia, as the successor state to Yugoslavia, liable for tens of billions of dollars in reparations. But Bosnian Muslims say the suit's importance lies elsewhere, in creating an accurate and unchallengeable account of the conflict, which continues to poison regional politics.
"For our future, to have clean relations with our neighbors, we need to have a clear vision of our past and our future," says Sakib Softic, the lead Bosnian lawyer at the World Court in The Hague. "The international court has the authority, with its judgment, to finish up these questions from our past and move on toward the future."
While another international court in The Hague is trying individuals - including former Yugoslav president Slobodan Milosevic - for war crimes, the International Court of Justice (ICJ), as the World Court is officially known, hears cases between states.
Bosnia must prove to the court not only that genocide occurred, through the policy of "ethnic cleansing," but that the Bosnian Serb militias committing it did so on the orders of Yugoslav government officials, and with their support.
The Bosnian side "seeks to establish responsibility of a state which, through its leadership and through its organs, committed the most brutal violations of ... the most sacred instruments of international law," Mr. Softic told the 16-judge panel in his opening statement last week.
When they present their oral arguments this week, Serbia's lawyers are expected to argue that the court has no jurisdiction over the case because when it was brought in 1993, the former Republic of Yugoslavia was not clearly recognized as a member of the United Nations, and thus not of the ICJ either.
It was on those grounds that in 2004 the court dismissed a suit filed by Serbia and Montenegro against the US-led bombing of Serbia during the 1999 Kosovo war.
Serbia's lawyers are also expected to argue that however horrific the crimes committed in Bosnia by Bosnian Serb forces, such as the massacre of more than 8,000 Bosnian Muslim men and boys near Srebrenica, the authorities in Belgrade were not responsible for them.
The case will challenge the ICJ, which is more accustomed to dealing with reconciling territorial claims in boundary disputes between nations. "This is a very, very political affair, and the decision will be a grave one," says Emmanuel Decaux, an international law professor at the University of Paris II.
In the field of international humanitarian law, the ICJ has been overshadowed by ad hoc war-crimes tribunals like those set up in The Hague to try cases arising from the Balkan wars, and in Arusha, Tanzania, to deal with those responsible for the Rwandan genocide, and by the recently created International Criminal Court, which has yet to hear a case.
"We are in the process of creating the architecture of international accountability for human rights violations," says Nicholas Howen, head of the Geneva-based International Commission of Jurists. "You need to hold individuals responsible, but there is a big gap if you can't say the machinery of a state is responsible, too."
The court's judgment, not expected until late this year, is eagerly awaited in Bosnia-Herzegovina. "I expect the court ... to give a good decision and say that Serbia is guilty," says Refik Begic, the Muslim mayor of Bratunac, a majority Serb town in eastern Bosnia. "If we are to trust each other and establish a good relationship, we need to know what happened here."
Serbian leaders, however, say that raking over the coals of the past will be bad for the future. The lawsuit could have "dramatically negative effects on future relations in the Balkans," Serbia's deputy prime minister, Miroljub Labus, told Nezavisne Novine, a newspaper published in Bosnia-Herzegovina's Serb-dominated Republika Srpska.
But in a region divided as much as anything by opposing memories and interpretations of what happened during the war "this [case] is about establishing the nature of the war, whether it was aggression or whether it was civil war," says Nerma Jelacic, a human rights investigator in Sarajevo.
The International Criminal Tribunal for the Former Yugoslavia (ICTY), where Mr. Milosevic is on trial, has already ruled that genocide did occur in Bosnia. Although the ICJ is not bound by that precedent, "it would be very troubling, and troublesome for the coherence of international justice" if the ICJ judges find otherwise, says Professor Decaux.
It will not be easy, however, for the Bosnian side to establish the Yugoslav government's responsibility for the war crimes its proxy forces committed. Prosecutors at the ICTY have sometimes had trouble proving all the links in alleged chains of command between the battlefields and Belgrade, and Bosnian lawyers at the World Court will not be able to use all the evidence presented at the ICTY, some of which Belgrade provided only on the condition it not be released to third parties.
The hearings will continue until May 9, when the judges will retire to consider what they have heard, along with thousands of pages of legal arguments. That is expected to take several months. The case was first brought in 1993, and has been prolonged by repeated procedural incidents and political upheavals in Belgrade.
But rather than blunting the impact of the judgment, the long delay might actually give it greater force, suggests Mr. Howen. "It shows the timeless nature of the crimes, the timeless need for accountability, and the timeless nature of the law," he says.
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http://www.usip.org/peacewatch/pdf/pw0106.pdf
US Institute of Peace (USIP)
Peace Watch-January/February 2006
Building for Peace
Carla Del Ponte's Quest for Justice
Chief prosecutor says the job is not yet done
With the tenth anniversary of the Srebenica
massacre approaching in July and two of the most
wanted individuals, Ratko Mladic and Radovan
Karadzic, still at large, the Balkans Working Group, headed
by Daniel Serwer, hosted a meeting in mid-June featuring
Carla Del Ponte, the chief prosecutor of the International
Criminal Tribunal for the former Yugoslavia (ICTY). Del
Ponte arrived shortly after the widespread distribution in
Serbia of a shocking video of a mass execution of Bosnian
Muslim men by Serbian paramilitary forces in 1995. "There
can no longer be any doubt that a genocide occurred in Srebenica,"
said the prosecutor. "The tide has now turned, but
the job is not yet done."
Del Ponte noted that cooperation between the ICTY and the
authorities in the Balkans had increased dramatically in the previous
six months. A score of indictees were transferred to The
Hague, including the former prime minister of Kosovo. International
pressure from Europe and the United States played a major
role in this transformation, said Del Ponte-as did the Serb and
Croat desire to begin discussions about acceding to the European
Union.
But some significant obstacles remain. The fact that the two
most wanted men are still at-large ten years after Srebenica is "an
insult to the victims and a shame to the international community"
said Del Ponte. Serbia and Republika Srpska must act in concert
with the international community to locate and arrest these two
men, who have been indicted by the ICTY on charges of genocide
and other crimes against humanity. (The ICTY itself has no
powers of arrest.)
The tribunal is accelerating its work in order to finish all the
trials by 2008 and all appeals by 2010. It is also slowly countering
government propaganda, especially in Serbia, that it is engaged in
selective and biased prosecutions. The ICTY now has 162 individuals
under indictment for war crimes, crimes against humanity,
and genocide. "We want to bring justice and reconciliation to the
former Yugoslavia," said Del Ponte. "If the need for justice is not
satisfied, then the next generation may want to render justice with
blood, tears, and weapons."
