Institute for War and Peace Reporting | Giving Voice, Driving Change
At the time, it seemed bizarre that the ICJ declined to demand minutes of Serbia’s Supreme Defence Council, SDC, as evidence in the case, and a few glimpses of the transcripts in a new book make it look even more so.
At the time, Belgrade had already supplied the documents to the International Criminal Tribunal for former Yugoslavia, ICTY, where judges had said in a procedural ruling that the transcripts showed Serbian president Slobodan Milosevic was complicit in genocide.
Without the documents, however, the ICJ decided that only the massacre of Muslim men and boys in Srebrenica in 1995 counted as genocide. Serbia was held responsible merely for failing to prevent it. Violent acts that went before Srebrenica, in which it was hardly a secret that Serbia was funding and organising Bosnian Serb forces in their campaign against Muslim civilians, were described as ethnic cleansing – not genocide.
Since then, the ICJ’s decision has been criticised by international lawyers and academics, who say the evaluation of all obtainable evidence is the main pre-condition for any fair trial. By ignoring this elementary rule of justice, the court has fueled allegations that its judgment was the result of political compromise.
The ICTY judges certainly found the documents very persuasive in the case against Milosevic, because in the procedural ruling in Milosevic case from June 16 2004, they concluded that genocide in Bosnia started in spring 1992 with “the aim and intention to destroy a part of the Bosnian Muslims as a group”.
But when the ICTY received copies of the documents, it appears to have promised that they would not be disclosed to the ICJ. The decision followed a deal between chief ICTY prosecutor Carla Del Ponte and Goran Svilanovic, Serbia’s ex-foreign minister, and detailed in a letter she sent to him in May 2003. In the letter, she agreed not to challenge Serbia’s right to protect its national interests with regard to the documents.
And now, some of these sensitive documents have been published in Podgorica by Momir Bulatovic, the former president of Montenegro who was planning to testify in defence of Milosevic, shortly before his Serbian colleague died of a heart attack in May 2006. The book is called Neizgovorena odbrana (Unspoken Defence). Despite being written by a Milosevic partisan, it amply demonstrates Serbian involvement in the Bosnian war in a way that should surely have interested the ICJ judges.
For example, at the 14th meeting of the SDC, held on October 11, 1993, Momcilo Perisic, then chief of the general staff of the Yugoslav army, informed SDC members that, because of new legislation, it was difficult to define the status of Yugoslav army members who were at that time serving on Bosnian and Croatian territory, while their families still lived in Serbia.
Perisic added that the problem of the status of 3,612 Yugoslav army officers was not resolved, and he proposed that Milosevic, as the highest authority, issue an order which would enable them to receive salaries from the Yugoslav army.
“We've made up a fictional temporary formation in the Yugoslav army. That's where we are deploying [these officers]. So, they are in fact not here [in Yugoslavia], but on their current posts [in Bosnia and Croatia],” said Perisic, according to page 169 of Bulatovic's book.
Extracts from the 17th meeting of the SDC provide even more proof that the Serb rebel forces in Croatia, VRSK, and Bosnia, VRS, were actually functioning under the same command structure as Belgrade’s troops. Bulatovic’s book details steps under discussion to ensure that refugees who had fled to Serbia should be mobilised and sent back to fight in their homelands.
“There were some ideas, and I am not sure why they were rejected, that we only use VRS and VRSK stamps [on draft calls], that our police bring in those people, put them in the army barracks [in Serbia] and transport them [to Bosnia and Croatia] from there,” said the book said.
According to Bulatovic, around 14,000 refugees were then in Yugoslavia who could have been conscripted and sent back to the war zones. He suggested the Yugoslav police use lists of names from the Red Cross to identify these conscripts and to arrest those who refuse to answer Republika Srpska’s draft call.
At meeting No 31, held on January 18, 1995, there is additional proof that the VRS functioned as part of the Yugoslav army.
The temporary formation which Perisic mentioned earlier was actually the mechanism by which 5,000 officers in Serb-controlled Bosnia received salaries from Belgrade. Due to a conflict with the Bosnian Serb government at that time, Bulatovic suggested this fictional formation should be wound up and that Belgrade should no longer pay salaries for its officers who were fighting in Bosnia.
Even though he understood Bulatovic's point of view, Milosevic opposed the suggestion, because he wanted to keep control of the Bosnian Serb forces despite disagreements with Bosnian Serb leader Radovan Karadzic and his government.
There are numerous other documents that put Serbia’s role in controlling the Bosnian Serb forces beyond doubt, and there would surely be many more in the full transcripts.
The Bosnian legal team did ask the ICJ judges to request access to the SDC transcripts. Had the ICJ demanded them, it could not, as the highest judicial organ of the United Nations, have been ignored.
Leaving that aside, the ICJ judges could also have requested the documents from the ICTY, regardless of the deal Del Ponte made with the Serbian government.
But sadly, the judges decided it wasn’t worth the effort, because they said they already had enough evidence to make their decision. This reasoning alone breaks the main rule of a fair trial, which makes it an imperative for judges to review all available evidence, especially when it is potentially very important.
It would be difficult to speculate whether these documents would have changed the ICJ verdict, but even the small part of the documents detailed here must raise speculation that they could have done.
We could go on with numerous quotes from the book, all of which reveal various aspects of Serbia’s involvement in the Bosnian war. However, it is very disappointing that neither the team who presented the Bosnian genocide case before the ICJ, nor Carla Del Ponte’s office used the limited details in this book, which was published in the summer of 2006 and therefore available to them, as an argument to convince the judges to demand the confidentiality of all SDC documents be lifted before the judgment was rendered.
The revelations are a very strong argument for making the set of confidential SDC documents available to the public. The passages from this book should be presented to the judges, together with a question asking what sense there is in barring public access to the full transcripts when it would appear third parties can access them and publish them as and when they want.
Edina Becirevic is senior lecturer at the University of Sarajevo’s Faculty of Criminal Justice Sciences.
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