The genocide in Srebrenica (and in Rwanda) and its impact on the development of international law
● Prof. Dr Ernest Petrič
- Vice-President of IFIMES Advisory Board
- Member and former President of Constitutional
Court of the Republic of Slovenia
- Member and former Chairman of International Law Commission
The genocide in Srebrenica (and in Rwanda) and its impact on the development of international law
1. In Srebrenica the crime of genocide was committed, and elsewhere in Bosnia and Herzegovina crimes against humanity and war crimes were also committed. This is the conclusion, which was drawn by the ICJ in the Bosnia and Herzegovina versus Serbia/Montenegro case. I, as a lawyer and as a person, share the criticism of the ICJ judgement in this case. The mass murders in Bosnia and Herzegovina of Muslims/Boshniacs went on for three years from the summer of 1992 until the Srebrenica massacre in the summer of 1995. Mass graves are still being discovered. It is no doubt that there were several ten thousands murdered in an organised way because they were Muslims/Boshniacs, in Srebrenica, in Prijedor, in Bijelina, Višegrad etc., with a clearly defined purpose (dolus specialis) to cleanse parts of Bosnia and Herzegovina of its Muslim population. Indeed, like "holocaust", which was also committed over several years, from 1939 to 1945 at different places, with the same purpose (dolus specialis) – to exterminate Jews from Germany and parts of Europe controlled by the Nazis. Surprisingly too many, the majority in the ICJ opted for a narrow interpretation of the Convention on Prevention and Punishment of Genocide drafted in special historic circumstances in the early years after 1945. There are thus good reasons to claim that the crime of genocide was not limited only to Srebrenica but occurred all over Bosnia and Herzegovina.
2. After 1948 the prohibition and punishment of the crime of genocide, including a legal definition of this horrendous crime was integrated into international law as a consequence of mass killings committed during the Second World War of six million Jews, of hundreds of thousands of others, simply because they were Jews, Roma, Poles or Slavs. Simply because they belonged to a certain racial, religious, national, ethnic group they were – men, women, old, young and children alike – physically exterminated. After 1945, humanity and international community were aware and determined that the crime of genocide should never reoccur. To this end, the Convention on Prevention and Punishment of Genocide was drafted in 1948. Great majority of States, actually nearly all existing States, are parties to this convention and have introduced the crime of genocide and its severe punishment in their penal codes. Although the crime of genocide is defined narrowly in the 1948 Convention, not including the mass killings and exterminations of members of political groups (politicide), and the so called "cultural genocide" was not sanctioned either, it was hoped and believed that the crime of genocide will never be committed again. Because of the victims of holocaust and their sufferings the crime of genocide was introduced and sanctioned as the most horrendous crime under international law and under national laws. The awareness of gravity, of profound infamy and criminality of genocide and also of activities similar to genocide (genocidal acts) grew throughout the world, including the legal doctrine and the general public.
3. In particular after the fall of Berlin wall, hopes were high that in a world which was no longer divided in two antagonistic military and ideological blocks that used to be exposed to constant confrontations between them there will be no room for the crime of genocide. Rwanda and Srebrenica were tragic proofs that this was an unrealistic hope, a false expectation. After the incapability of international community to prevent genocide in both Rwanda and Srebrenica the disappointment was great. But the awareness also grew that new, additional endeavours are to be undertaken to eliminate genocide and other crimes against humanity from the surface of the world. Kofi Annan's words at the United Nations Millennium Summit were clear: Rwanda and Srebrenica should never happen again!
4. After Rwanda and Srebrenica, several new ideas, endeavours and proposals have been made by non-governmental organisations and by governments aiming to strengthen the ability of international community to prevent genocide and other similar crimes. The Secretary General of the UN, Kofi Annan, was among those - myself included - who promoted the idea of the so called "humanitarian intervention". The core of this idea was that international community should be authorised and empowered to act, to intervene, inter alia, by the use of armed force, to prevent genocide, crimes against humanity, ethnic cleansing. Of course, there should be limitations to prevent intervening States from misusing "humanitarian interventions" to promote their own hidden interests. Because of the bad experiences with "humanitarian interventions" in the past, actually in different historic circumstances, in particular in the era of colonialism, and because of more or less realistic fears that great powers, but not only them, might misuse the "humanitarian interventions" for their own purposes, this concept did not get support from the majority of the UN member States. On the contrary, the majority of States were opposed to it, claiming that the basic principles of international law, the sovereignty and the principle of non-intervention should be strictly respected and thus there should be no room, no justification in international law for "humanitarian" or any other intervention by use of force.
5. In particular because of Srebrenica, this horrible genocide committed in Europe, the endeavours persisted to prevent such crimes, inter alia, by severe punishment of the perpetrators who must enjoy no immunity whatsoever. The idea and the endeavours to establish a permanent international court got decisive support because of the genocides in Srebrenica and Rwanda and the crimes against humanity, war crimes and ethnic cleansings occurring there and elsewhere in the world. The slow and sometimes controversial work of the ICTY and also of the ICTR and problems of these special ad hoc tribunals established by Security Council also proved the need for the establishment of a permanent international criminal court.
6. The idea of a permanent international criminal court was realised by the entry into force, after years of negotiations, of the Rome Statute and by the establishment of the ICC. For the States parties to the Rome Statute, the criminal jurisdiction of the ICC is established for their citizens, including the highest state officials (comprising also Heads of State), for the crimes of genocide, war crimes, crimes against humanity, and the crime of aggression. In spite of the fact that several of the most important states such as the USA, China, Russia, India, and several others are not parties to the Rome Statute yet, the establishment of the ICC is a unique historic breakthrough towards universal criminal jurisdiction for those most heinous and massive crimes. It is also a far-reaching step towards the prevention and punishment of the crime of genocide in particular. This historic step was made to a large extend because of the crimes of genocide committed in Srebrenica and Rwanda.
7. It is roughly a decade since the ICC was established. Its jurisdiction is not universal. It is also substantially limited, namely to the crimes of genocide, war crimes, crimes against humanity and the crime of aggression. Its work nevertheless has an important impact not only in the States which are parties to it, but throughout the world. Also, several States not yet parties to the Rome Statute cooperate with the ICC. Besides praise there has also been criticism of the ICC, which is understandable since this is an entirely new international judicial institution. There are ideas and endeavours to establish regional permanent criminal courts, i.e. in Africa. In any case, the awareness now exists throughout the world that prevention and punishment of crimes such as genocide is not only national but also international responsibility, and that the perpetrators of those crimes must never escape punishment.
8. Although the ICJ judgement in the genocide case of Bosnia and Herzegovina versus Serbia disappointed many - I was among them - it nevertheless, by confirming that genocide was committed in Srebrenica, contributed to the awareness of gravity and real danger of such crimes to reoccur. This judgement also proved that the definition of genocide in the 1948 Convention, which the ICJ strictly upheld, is narrow and does not correspond to several relevant factual situations which are close to or have a similar aim to genocide. In particular, the mass murders of political opponents (such as the politicide in Kampuchea) or other people not belonging to those groups defined in Article 2 of the 1948 Genocide Convention, should be considered and treated as genocide. As a consequence of the genocidal acts committed in Bosnia and Herzegovina, several non-governmental institutions have suggested that the definition of the crime of genocide should be broadened to also include "politicide" and "cultural genocide", and also mass murders even if the specific purpose to exterminate a specific group is difficult to prove.
9. The ICJ judgement, in which the mass murders, torture, mass rapes, deportations and other cruelties committed in Bosnia and Herzegovina are defined as crimes against humanity contributed to the awareness that a universal instrument to prevent and punish crimes against humanity is needed. In 2013 the ILC (International Law Commission) introduced the topic "Crimes against Humanity" in its work programme with the intent of drafting an international legal instrument on the prevention and punishment of crimes against humanity. The "crimes against humanity" should also be defined, probably in line with the definition of the crimes defined in the Rome Statute.
10. Several crimes committed during the tragic events in Bosnia and Herzegovina could be categorised as "genocidal acts", i.e. crimes which are not strictly genocide as defined in the 1948 Convention, but are by their purpose, magnitude, cruelty, and gross violations of basic human rights similar to genocide. Among them is ethnic cleansing. In the years after 1992 the term "ethnic cleansing" was often used to indicate forced deportations, accompanied by murders, torture, rapes, to "clean" the territories in Bosnia and Herzegovina of its Muslim (Bosniac) and Croatian population. Thus by its final purpose "ethnic cleansing" is close to genocide – its aim is to eradicate certain racial, national, ethnic, religious group on a certain territory. Ethnic cleansing was also committed in other parts of the Balkans and the world in the past, and it has recently been committed also in Kosovo, Darfur, Iraq, South Sudan etc. The forced expulsions and deportations in Bosnia and Herzegovina during the war were among reasons for the inclusion of "ethnic cleansing" among crimes in the Rome Statute and thus within the jurisdiction of the ICC.
11. The idea of "humanitarian intervention" did not gain sufficient international support. Yet, there remained the need for the international community to be capable and legally authorised to stop massive atrocities, in particular genocide, crimes against humanity, war crimes, and ethnic cleansing, wherever they occur. At the UN GA World Summit in September 2005, the concept of the "Responsibility to Protect" was endorsed. The GA clearly stated (in paras. 138 and 139 of the 2005 World Summit Outcome Document) that each individual State has the primary responsibility to protect its population from those crimes, explicitly from genocide, crimes against humanity, war crimes and ethnic cleansing. However, when the State in which those crimes are committed is unable or unwilling to protect its people, the international community has the responsibility to protect them and thus the right to intervene, also by using armed force. In accordance with the existing international legal system, it is of course clear that such an intervention has to be authorised by the Security Council and should be carried out under its supervision. This is intended as a guarantee that the intervention would not be misused. However, at the same time it is also a weakness, since the intervention can be blocked by a veto or by the threat of a veto by any single permanent member of the Security Council. Thus an international intervention took place in Libya, but not in Syria. The "Responsibility to Protect" is naturally neither a legal rule nor an obligation but a legal concept approved by the GA and consequently a political possibility. It is also not a guarantee that the people will be saved and protected. It is a political concept based on international law. The intervention in Libya, for example, did not bring safety to the people living there. However, the concept of the "Responsibility to Protect" and consequently the possibility of the international community to intervene is a great, historic step towards the prevention of such crimes and towards the protection of the people who are their victims. Not only are the States now bound by international law to prevent such crimes, including genocide, on their territories, but they are also exposed to the possibility of an intervention if they fail to protect their population by themselves. The sovereignty of States is thus acquiring a new dimension. It is no longer only a means, a "right" applied to protect a State from foreign interventions, but also a duty of the State to prevent the commission of such crimes on the territory under its sovereignty or jurisdiction. Otherwise, the State has to face the possibility, the threat of an intervention by the international community. This far-reaching development of international law would not have occurred without the tragedies in Bosnia and Herzegovina and Rwanda.
12. The crime of genocide, crimes against humanity, war crimes, and ethnic cleansing rarely happen unexpectedly. Usually gross human rights violations in a State or in a region are an early warning signal of escalating tensions, of an impending conflict in which these crimes are then committed. The international community must therefore strive and act preventively to remedy the tense, dangerous situations through mediation and by other peaceful means to prevent the outbreak of a conflict and to secure and consolidate the peace. The initiative of the UN Secretary General, "Rights up Front", is an important step towards the ability of the international community to deal pre-emptively with situations which could lead to genocide and other horrific crimes. It should also contribute to the awareness of the root causes of such crimes.
13. International cooperation is of great importance in establishing the awareness of and responsibility for these horrific crimes. Cooperation is also key for securing evidence, testimony, protection of witnesses and assets, and delivery of suspects. An initiative to draft a universal treaty on mutual legal assistance and extradition for domestic prosecution of these crimes has been put forth by some States, including the Netherlands, Argentina, Belgium, and Slovenia. If successfully completed, such a treaty would immensely contribute to the effective prosecution and consequently to the prevention of such crimes. It would contribute to putting an end to impunity for these crimes. It would further enable States to comply with their international obligations and empower their national judiciaries to adjudicate such crimes.
14. In the contemporary international legal system, the role of the Security Council in preventing these crimes is crucial. In the past, there occurred situations where people were exposed to genocide, crimes against humanity, war crimes, ethnic cleansing, not to speak of other gross, massive violations of human rights. And at the same time we witnessed the international community's reluctance to act to prevent and stop the crimes. I will not name the cases that put a blame on every one of us; let me only state that the crimes committed in Bosnia and Herzegovina, in particular the crimes committed in Srebrenica, entail such a case. The international community, through the Security Council, did not act or it acted too late and half-heartedly. Too often, some permanent member of the Security Council, any of the so-called P5, used their veto or threatened to use it and thus blocked or slowed down the international action. The tragedy of the people of Syria is a telling case. It is thus crucial to pressure the P5 to refrain from using their veto power whenever the veto might block activities aiming to protect people from genocide, crimes against humanity, war crimes, or ethnic cleansing. Exposing the past sufferings and at the same time also the unwillingness or inability of the international community to act, exposing the facts, the memories of the victims, the truths, are important contributions to creating the awareness that those who have a special responsibility and special powers should not, due to their political and other interests, use their prerogatives to prevent the international community from acting and thus unwillingly or willingly contribute to the commission of these horrible crimes and to the fact that their perpetrators remain beyond the reach of the hand of justice.
15. It is encouraging that a permanent member of the Security Council, i.e. France, recently emphasised that permanent Security Council members should not (mis)use their veto right to prevent or obstruct the international community from acting in cases of genocide, crimes against humanity and war crimes, and ethnic cleansing. This year, a hundred years after the sufferings of the Armenian victims of genocide, 75 years after the holocaust, 20 years after Srebrenica, and in due respect for the victims of those atrocities, may also be a good time for the other four permanent Security Council members to consider their positions and join this important initiative.
16. To erase genocide from the common future of humankind, it is important to remember the horrifying instances of past genocides. In the present case, to remember the genocide in Srebrenica. Conducting research, gathering documentation, keeping the memories and awareness alive is of crucial importance. This conference and other activities of the "Association of Victims and Witnesses of Genocide" and of the "Mother's Action of the Srebrenica Zepa Enclave" are of immense and crucial importance. We must never forget what happened if we want to contribute to the prevention, if we wish to achieve that the crime of genocide will never occur again.
17. No immunity and severe punishment for the perpetrators of such crimes are of crucial importance to prevent their reoccurrence. Bringing those who prepare such crimes, including political and propaganda activities, who organise, support and execute them, is also of crucial importance for re-establishing normal life, coexistence, and cooperation among different groups in the affected societies. It is also essential for the rehabilitation and reconciliation, for the peace and development in the societies harmed, disintegrated, and destroyed by these crimes. Unless the truth is known and justice is done, the endeavours for reconciliation will not succeed. It has been proven in cases where even after long decades nations remain divided and not reconciled. Slovenia is also such a case, a nation divided due to the crimes committed after 1945 that were never investigated and prosecuted and their perpetrators were never brought to justice. Also in the case of Bosnia and Herzegovina true reconciliation will be achieved only when the truth is revealed and people see that justice has been done. Establishing the truth and that justice be done is also of great importance for the activities of the "Association of Victims and Witnesses of Genocide" and "Mother's Action of the Srebrenica and Zepa Enclave".
18. Some claim that the way to reconciliation is not to "dig into what happened", that " it is better to forget", or even pretend that there was no genocide in Srebrenica and in Bosnia and Herzegovina. However, the only ethical solution is to discover the truth and bring the perpetrators to justice. Until those who prepared, ordered, and committed genocide are not brought to justice, as long as the crimes are denied and the truth is not faced, there will and can be no reconciliation. How can those whose loved-ones perished as victims of those horrible crimes accept reconciliation unless the truth is told and justice is done? It would be unethical, unjust, and moreover, it would not contribute to reconciliation. Conferences like this that search for the truth are important and pave the way to reconciliation.
19. I have spoken of the progress and the endeavours that have been made in the last 20 years since the genocides in Srebrenica and Rwanda to prevent genocide and other atrocities in the future. We may indeed hope for a future without the crimes of genocide, crimes against humanity, war crimes, or at least that the perpetrators of such crimes will be prosecuted and brought to justice. This development of international law that I spoke about would not have occurred had it not been for the genocides in Rwanda and Srebrenica. Let me, thus, conclude that the sufferings of the victims of the horrible crimes in Srebrenica were not in vain. The lives lost and the suffering of the victims have contributed to a better, more humane world, as well as, let us hope, to a world without genocide. This is an additional and extremely important reason never to forget the crimes of genocide in Srebrenica and Rwanda and to remember the suffering of their victims. And to strive to do everything necessary for the truth to be revealed and the perpetrators to be brought to justice.
Ljubljana, June 24, 2015