Institute for War and Peace Reporting | Giving Voice, Driving Change

Controversy Over Ruling on Bosnian Case

The tribunal’s chief prosecutor says she is disappointed with the low-key reaction to Bosnia’s genocide case at the International Court of Justice.
By Caroline Tosh
The chief prosecutor at the Hague tribunal for the former Yugoslavia has attacked what she called the “muted” response of the international community to a ruling by the International Court of Justice against Serbia, noting that it was the first time the court had found any state liable under the Genocide convention.

In its judgement of February 26, the International Court of Justice, ICJ, cleared Serbia of responsibility for genocide – the prime allegation in the case brought by Bosnia - but found that it had failed to use its influence to prevent the crime, in breach of the Genocide convention.

The landmark ruling also said that Serbia had violated its obligations under the convention by failing to cooperate with the International Criminal Tribunal for the former Yugoslavia, ICTY, and to deliver former Bosnian Serb general Ratko Mladic to stand trial before that body.

In a statement on March 14, ICTY Chief Prosecutor Carla Del Ponte stressed the importance of such findings being made against a sovereign state, and voiced concern that the fact seemed to have been downplayed.

“The prosecutor was very surprised to see that the response of the international community - and especially the Presidency of the European Union - to this ruling appears to be quite muted,” said Olga Kavran, spokesperson of the Office of the Prosecutor, who read out Del Ponte’s March 14 statement at a press conference in The Hague this week.

Del Ponte said the low-key reaction was “truly a potentially devastating development”, especially given the ICTY’s completion strategy. The court is under pressure to close its doors by 2010, with or without Mladic in custody.

Mladic - along with Bosnian-Serb wartime leader Radovan Karadzic – has been a fugitive since he was indicted for genocide and complicity in genocide at the tribunal nearly 12 years ago.

This was, the Swiss lawyer said, “the first time the court has found any state liable under the Genocide Convention”.

“Specifically, the ICJ found that Serbia violated its obligation to prevent the genocide in Srebrenica and punish its perpetrators,” she said.

Del Ponte pointed out that a statement released by Javier Solana, the European Union High Representative for Common Foreign and Security Policy, “made no mention of the fact that Serbia was found in violation of the Genocide convention”. Instead, he applauded the fact that "there is no collective punishment" and that "the highest tribunal in the world has closed that page", she said.

She noted that the German presidency of the EU had issued a similar statement.

Serbia’s failure to hand over Mladic resulted in the suspension of its EU accession talks in May 2006, but there are signs that Europe’s stance may be softening. Earlier this month, Olli Rehn, the EU’s enlargement commissioner, met Serbian president Boris Tadic and indicated that Belgrade could acquire EU candidacy status in 2008 if it resumed full cooperation on war crimes suspects.

Some Balkans experts are concerned by this apparent change of heart.

Carole Hodge, author of “Britain and the Balkans”, said that by embracing a state which is “reluctant to recognise its central role in the Bosnian genocide, Javier Solana and his associates in Brussels risk repeating the errors of 1991, when the European Community chose to negotiate with Belgrade even as crimes against humanity were being perpetrated in Vukovar and elsewhere”.

“The ICJ judgement has essentially let Serbia off the hook,” she added.

Meanwhile, the long-awaited ruling continues to create political fissures throughout the former Yugoslavia.

On February 27, President Tadic called on the Serbian parliament to immediately adopt a declaration condemning the genocide in Srebrenica. The following day, a coalition led by the Liberal Democratic Party said it would submit such a declaration to legislators.

The move met fierce resistance from Serbia's major political parties, who want any declaration to be broadened to include all crimes, not just the Srebrenica massacre.

Past attempts by the Serbian parliament to condemn crimes committed in Srebrenica have floundered.

Now Srebrenica’s calls for greater autonomy, which re-emerged following the ICJ ruling, are creating a rift in Bosnia.

The demands for self-rule by Srebrenica’s Muslim population have been backed by the Muslim and Croat members of Bosnia’s rotating presidency - Haris Silajdzic and Zeljko Komsic, respectively – but opposed by authorities in the Bosnian Serb entity of Republika Srpska, where the town is located.

But Milorad Dodik, the prime minister of Republika Srpska, told local media this week that his government would take action against anyone who tried to change its constitution outside the legal process.

Caroline Tosh is an IWPR reporter.

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