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

ICJ Case Builds on What Went Before

Given the huge overlap in subject matter, recent proceedings at the International Court of Justice could provide an important new perspective on past Yugoslav war crimes trials.
By Michael Farquhar
As Bosnia’s genocide suit against Serbia and Montenegro played out at the International Court of Justice in recent weeks, it quickly became clear just how closely the process would echo earlier events at the nearby United Nations-run Yugoslav war crimes tribunal.



In their effort to show that Belgrade was responsible for a genocidal campaign against non-Serbs during the Bosnian war of the early Nineties, the Sarajevo lawyers presented reams of documentation from the International Criminal Tribunal for the Former Yugoslavia, ICTY.



A number of witnesses who appeared before the ICJ were familiar faces from trials held at the war crimes court.



But the Bosnian lawyers have been quick to argue that their case is not about rehashing what has gone before. Instead, they insist, it offers an important opportunity to piece together the ICTY’s disparate findings in order to see the bigger picture.



At an early stage in the ICJ proceedings, Thomas Franck, a lawyer on the Bosnian side, pointed out that tribunals like the ICTY are limited to studying “the acts of solitary indicted individuals”.



“You, however, are being asked to see all the acts committed by many,” he went on, addressing ICJ judges. “And from that panoramic optic will emerge Bosnia’s wider patterns which, it will be clear, cannot be dismissed as isolated atrocities.”



Bosnia’s argument here partly relates to the specific kind of intent that forms a necessary – and notoriously hard to prove – element of the crime of genocide.



The broad-based ICJ proceedings, the Sarajevo lawyers hope, are uniquely well-suited to revealing a pattern of brutality so vicious and comprehensive that it could only have been the product of an intent to destroy at least a part of the country’s non-Serb population. Belgrade, they argue, had such intent.



The ties between the ICJ case and proceedings at the ICTY were obvious throughout the past weeks of court hearings.



When the opposing teams brought witnesses to court to support their arguments, they both called individuals who had previously given evidence in the trials of such high profile ICTY indictees as the late Yugoslav president Slobodan Milosevic and Bosnian Serb generals Stanislav Galic and Radislav Krstic.



The Sarajevo lawyers have repeatedly suggested that Belgrade’s ongoing tense relations with the tribunal are of the utmost relevance to the present proceedings. They argue that Serbia’s failure to hand over such high-profile war crimes fugitives as Bosnian Serb army leader Ratko Mladic constitutes an ongoing violation of the UN Genocide Convention which lies at the heart of the ICJ case.



In addition, much of the documentary evidence used to construct Bosnia’s lawsuit derives from proceedings at the war crimes tribunal.



Almost as soon as the ICJ hearings began, Bosnian team put forward one of its members, lawyer Magda Karagiannakis – who has worked at the ICTY – to argue for the credibility and reliability of the tribunal’s work.



Besides judgements handed down to convicted war criminals, Karagiannakis said, the Bosnian team would be employing ICTY indictments as evidence, as well as decisions issued prior to the defence stage of tribunal proceedings, in which judges rule whether prosecutors have presented a solid enough case for the charges to stand.



Karagiannakis went on to say that individual exhibits, including documentary evidence, witness testimony and expert reports, would also be carried over from ICTY trials.



Predictably, the Serbian legal team has been scathing about Bosnia’s use of ICTY material in ICJ proceedings.



Karagiannakis had suggested that ICTY indictments were a useful source since charges are only confirmed at the tribunal once a judge is satisfied that there is a prima facie case to answer. But Sasa Obradovic argued on Serbia’s behalf that indictments used as evidence are largely just unconfirmed allegations.



Obradovic also attacked the Bosnian side’s use of testimony provided by accused persons at the ICTY as part of plea agreements with prosecutors. Such statements, he argued, have not been used as evidence at the war crimes tribunal itself, unless supported by additional oral testimony from the individuals who provided them.



The Serbian objections have also gone to the very heart of their opponents’ method, which is to use evidence about what occurred on the ground in Bosnia to suggest that those events must have been driven by a genocidal intent. Serbian lawyers suggested that what is in fact needed to prove genocidal intent is direct evidence concerning the specific state of mind of the individual or individuals behind the crimes.



Despite Bosnia’s efforts to provide this kind of evidence as well, the Belgrade lawyers claimed this was a weak point in Sarajevo’s case.



One source of evidence which might have the potential to provide direct proof of genocidal intent – records of the Supreme Defence Council, SDC, Yugoslavia’s top political and military body – remain out of reach for the Bosnian side.



While SDC records were shared with prosecutors at the ICTY, much of this material remains under wraps at the tribunal because of what Belgrade claims are national security concerns. In an interview last year, one Serbian official said that the possibility that this material could be used to influence the ICJ case was in fact a major worry.



The Serbian lawyers have been quick to duck any suggestion that Belgrade’s unwillingness to reveal the documents is a sign of a guilty conscience. In fact, they have argued, in addition to the original security concerns, the protective measures placed on the documents by the ICTY are now a further barrier to making them public.



Besides its attacks on Sarajevo’s allegations of state-sponsored genocide, the Serbian team has also invested a great deal of effort over the past weeks in arguing that the ICJ has no jurisdiction over Bosnia’s genocide lawsuit anyway. If successful, this objection could topple Bosnia’s efforts to piece together a comprehensive account of the war, by getting the whole case thrown out without being judged on its merits.



In the meantime, both sides have wrapped up their courtroom submissions and the judges have withdrawn to consider their verdict. A judgement could be issued within months on whether Belgrade was responsible for genocide in Bosnia.



Franck has described the work of the ICTY as like assembling “pieces of a puzzle” and has hailed the ICJ case as an opportunity to present the judges with “a very large canvas and with many parts of that puzzle”.



Assuming Belgrade does not succeed with its objection on ICJ jurisdiction, it now only remains to be seen what the completed puzzle will reveal.



Michael Farquhar is an IWPR reporter in London.