Courtside

Bosnia Launches ICJ Genocide Suit

A review of the first week of proceedings provides indications as to how the Sarajevo legal team will employ evidence from the ICTY in its case against Serbia.

By Helen Warrell in The Hague (TU No 442, 3-Mar-06)

“The Belgrade authorities have knowingly taken the non-Serbs of Bosnia and Hercegovina on a path to hell,” announced lawyer Sakib Softic, opening Sarajevo’s lawsuit against Serbia for genocide at the International Court of Justice, ICJ, this week.

In the first court session on February 27, Softic accused Serbia of instigating a war which hit Bosnia like a “man-made tsunami” in the early Nineties, leaving “dead bodies, broken families, lost youths, lost futures… and destroyed towns and villages”.

Bosnia, the first country ever to bring a state versus state genocide charge, aims to secure international legal acknowledgment of atrocities allegedly committed by the Serbian leadership during the 1992 to 1995 conflict. The case was first filed 13 years ago but has been delayed by legal wrangling.

Phon van den Biesen, a Dutch lawyer on the Sarajevo team, added to Softic’s preliminary remarks by warning the court that he would be presenting a story of a “prolonged, ugly, extremely vicious genocidal assault”. He also accused Serbia of doing its best to escape “factual and legal accountability” for the worst atrocities committed on European soil since World War Two.

As the oral pleadings began inside the ICJ’s immense hall, survivors of the war in Bosnia gathered in the street outside to make sure that the human cost of the conflict was not forgotten. Bosnian Muslim protestors waved banners proclaiming “Aggression + genocide = Republic of Serbia”, and shouted slogans demanding justice.

Meanwhile, the “Women of Srebrenica” group read out a list of those who had died in the massacre of thousands of men and boys from the town by invading Bosnian Serb forces in 1995.

Even after the clamour of the opening day had subsided, the emotive rhetoric continued.

On the second day of hearings, American advocate Professor Thomas Franck, appearing as counsel for Bosnia, said that the court would hear the “anguished voices of the victims” alongside visual evidence, the opinions of respected experts and reports from United Nations fact-finding missions.

As observers had predicted, it also became clear that the Bosnian team would rely heavily on material and previous decisions from the Hague-based International Criminal Tribunal for the Former Yugoslavia, ICTY.

Franck noted that some documents relevant to Bosnia’s case had been released from the Belgrade archives to the ICTY on condition that they would not be made available for the case against Serbia at the ICJ. Such material is thought to include records of meetings of a top Yugoslav decision-making body, the Supreme Defence Council, SDC, which have already been used in war crimes proceedings against the former Yugoslav president, Slobodan Milosevic.

However, plenty of other potentially valuable evidence has emerged into the public domain through trials at the ICTY.

Magda Karagiannakis, an Australian lawyer who worked for six years as a prosecutor at the war crimes tribunal, spoke at length about the “credible and reliable nature” of that court’s evidence and the consideration given to its decisions and judgments.

She went on to say that the Bosnian case would draw on decisions made by judges in the separate ICTY trials of Milosevic and the top Bosnian Serb politician Momcilo Krajisnik. Following the end of the prosecution cases against them, lawyers acting on behalf of both men sought to have charges of genocide thrown out of court on the grounds that the evidence brought to back them up was too flimsy.

In each case, the trial chambers found that there was sufficient evidence that the tribunal could be satisfied that “genocide was committed in certain municipalities of Bosnia…and that both accused could be found guilty of this”, said Karagiannakis.

The Australian lawyer also informed the judges that Bosnia’s case would make use of preliminary proceedings at the ICTY against the Bosnian Serb president Radovan Karadzic and the Bosnian Serb Army, VRS, chief Ratko Mladic, who are alleged to have been responsible for the Srebrenica massacre. Both men are currently on the run from the tribunal.

Other cases mentioned were those of Yugoslav Army, VJ, chief of staff Momcilo Perisic, Serbian state security chief Jovica Stanisic and the Serb special operations commander, Franko Simatovic. The indictment against Perisic includes detailed allegations of Yugoslav support for Bosnian Serb forces.

Karagiannakis also focused on another case which the Australian lawyer worked on – that of onetime Bosnian Serb president Biljana Plavsic.

Karagiannakis told the court that both Plavsic and a less senior Bosnian Serb politician, Miroslav Deronjic, merited “particular attention” among those who had pleaded guilty before the ICTY.

Most guilty pleas at the ICTY have been accompanied by testimony from the individual in question about events on the ground and details of the chains of command which linked these events to higher authorities.

In his opening speech, van den Biesen mentioned that when Plavsic pled guilty in October 2002 to having committed persecutions on political, racial and religious grounds, she explained how the SDS had ordered the creation of municipal crisis staffs. These, in turn, formed local territorial defence units which carried out the separation of Muslims from Serbs “by force”.

The ethnic separation of one side from the other appears to be an important factor in the Sarajevo lawyers’ attempts to prove the widespread occurrence of “ethnic cleansing” during the Bosnian war.

As president of the Bratunac crisis staff in eastern Bosnia, Deronjic was responsible for one of these territorial defence units. In September 2003, he confessed that he had “subscribed unequivocally to the policy of creating Serb ethnic territories within Bosnia”. He also admitted having authorised an attack on the village of Glogova in May 1992, in which some 60 Muslims were killed.

Deronjic, who became the civil commissioner of Srebrenica after the town was taken over by the Bosnian Serb army in 1995, has also given key testimony about the notorious events that followed. During one meeting with a VRS officer, he recalled being informed that orders had come “from the top” for prisoners held in the area to be executed.

Among the other topics addressed in the guilty pleas that Karagiannakis mentioned was the “mass forcible transfer” of Muslims, as shown in evidence given by Bosnian Serb army commanders Dragan Obrenovic and Momir Nikolic.

Both admitted persecutions on political, racial and religious grounds, a crime against humanity. Obrenovic was present during the mistreatment and abuse of Bosnian Muslims at detention centres and execution sites near Srebrenica after it fell to the VRS.

Nearby, around the same time, Nikolic has recalled being told by a VRS colonel, Vujadin Popovic, that able-bodied Muslim men were to be separated from the women, detained in the town of Bratunac and “killed shortly thereafter”.

Amongst other cases which the Australian prosecutor drew the court’s attention to were those of two individuals who have admitted helping to run detention camps in Bosnia, Dragan Nikolic and Goran Jelesic.

Nikolic tortured prisoners and allowed guards and others to rape female detainees during the time that he was in control of the Susisca camp in Vlasenica. Jelesic, who notoriously called himself the “Serb Adolf”, interrogated, shot and beat detainees at the Luka Camp, in the far east of Bosnia.

Later in the hearings Franck laid out the Bosnian case on the legal case of genocide, again using ICTY established facts and judgements. He made reference to one of the most prominent cases at the tribunal – that of Bosnian Serb general Radislav Krstic, the most senior of only two Hague indictees convicted of genocide so far.

The judges in the Krstic case, he said, concluded that “the genocidal intent was itself manifest in the very acts committed …a systematic pattern of targeted murders”.

But Professor Franck suggested that the ICTY evidence only constitutes “pieces of a puzzle”, and that if put together, as will be done at these hearings, “genocidal intent is, indeed, the only reasonable inference that may be drawn from the strategic plan”.

The Bosnian team will continue to expand on their case when the proceedings resume on March 6.

Helen Warrell is an IWPR reporter in The Hague.