Bosnia and Herzegovina – Serbia: Revision of ICJ judgement – the road to justice or to violence?
The International Institute for Middle-East and Balkan Studies (IFIMES) in Ljubljana, Slovenia, regularly analyses events in the Middle East and the Balkans. In view of the announced revision of ICJ judgement in the lawsuit of Bosnia and Herzegovina against Serbia, IFIMES has analysed the situation and the possibilities for success of revision. The most interesting sections from the analysis entitled “Bosnia and Herzegovina – Serbia: Revision of ICJ judgement – the road to justice or to violence? ”are given below.
Bosnia and Herzegovina – Serbia:
Revision of ICJ judgement – the road to justice or to violence?
In 1993 Bosnia and Herzegovina (BiH) filed a lawsuit against the Federal Republic of Yugoslavia (Serbia and Montenegro) before the International Court of Justice (ICJ) in The Hague, which is the highest court instance in the United Nations Organisation structure. ICJ passed the judgement on 26 February 2007 in the case concerning the violations of the Convention on the Prevention and Punishment of the Crime of Genocide adopted by UN General Assembly on 9 December 1948 as well as various other issues that Bosnia and Herzegovina claimed to be related to the case. The judgement represents an important international legal act, with which the highest UN court defined the massacre against Bosnian Muslims in Srebrenica as a genocide while it did not hold Serbia responsible for it and rejected the claim to pay financial compensation although it did rule that Serbia was responsible for failing to prevent the genocide and to punish the perpetrators.
Revision as a legal remedy provided for in ICJ Statute and Rules
Article61 of the Statute of ICJ and Article 99 of the Rules of ICJ provide for the conditions and procedures for opening the proceedings for revision of a judgement. Article 60 of the Statute states that the judgment is final and without appeal, therefore the revision proceedings are very specific and imply new decisive evidence that was not known at the time when the judgement was given. Filing an application for revision does not automatically open the proceedings before ICJ. The Court has to decide whether the evidence fulfils all the necessary conditions for opening the revision proceedings as a legal remedy provided for in the Statute and Rules. The application for revision must be made at the latest within six months of the discovery of the new fact, and no application for revision may be made after the lapse of ten years from the date of the judgment. In case Bosnia and Herzegovina makes an application for revision, the Republic of Serbia has a right to submit its observations on the admissibility of the application for revision within a time-limit fixed by the Court, or by the President if the Court is not sitting. These observations shall be communicated to Bosnia and Herzegovina. Before giving its judgment on the admissibility of the application ICJ may afford the parties a further opportunity of presenting their views thereon. Thus, eventual submission of an application for revision by Bosnia and Herzegovina does not automatically open the revision proceedings before ICJ but instead opens a series of prior proceedings after which ICJ will decide whether Bosnia and Herzegovina has submitted sufficiently persuading and decisive evidence to initiate the revision, with active participation (and expected opposition) of the Republic of Serbia in all these proceedings. There is no case law regarding the revision proceedings before ICJ. The Statute and the Rules, which have been amended several times, do not contain any precise definitions as to representation in the revision proceedings, especially bearing in mind that various political representatives and experts oppose the legality and legitimacy of the present Bosnian-Herzegovinian agent who represented Bosnia and Herzegovina in the case against Serbia for the revision proceedings. Should Bosnia and Herzegovina make an application for revision through its present agent, it is very likely that the legality of representation would be questioned in the preliminary question made by the Serbian side as well as by Serbian representatives in Bosnia and Herzegovina. The present agent of Bosnia and Herzegovina before ICJ has not been impeached, while ICJ rules lay down that the states in dispute before ICJ have to have the same agent throughout the court proceedings, i.e. they have to ensure the continuity of representation. An application for revision can also be made through an official diplomatic representative directly, indirectly or by a duly authorized person. In any case, eventual contesting as to the legitimacy, mode, legality and channel of submitting the application for revision by Bosnia and Herzegovina would definitely require ICJ to take a special approach, and analysts believe it would not be reduced to a mere verification of the legality and legitimacy of agents and/or applicants for revisions by ICJ's Registrar, but would probably include a special procedure and a discussion as well as the decision-making process regarding the legality. The fact is that the agent of Bosnia and Herzegovina in its lawsuit against Serbia before ICJ has never been officially suspended by BiH Presidency which had appointed him, which provides an additional argument for Bosnia and Herzegovina in the interpretation of legality according to domestic law.
BiH and Serbia have the right to submit an application for revision within 10 years
The general 10-year deadline for applying for a revision before ICJ will expire in end-February 2017. Both parties to the dispute, Bosnia and Herzegovina and Serbia, have the procedural right to submit an application for revision. According to statements made by the member of BiH Presidency Bakir Izetbegović, Bosnia and Herzegovina is considering the possibility of making an application for revision. Serbia has, except for some political statements made as a reaction to the announced Bosnian-Herzegovinian application for revision, not officially signalled that it has any plans to make such an application for revision. If Bosnia and Herzegovina filed an application for revision, the Serbian side would have the procedural rights to submit, upon ICJ's invitation, its observations regarding all the important aspects of the application for revision. Any predictions and statements made by Serbian and even some international representatives in Bosnia and Herzegovina that there is no “new evidence” for revision and that neither the present agent of Bosnia and Herzegovina before ICJ nor anyone else in Bosnia and Herzegovina is entitled or authorised to initiate the revision, are unlawful statements, since only ICJ can decide on those issues. Any statements regarding the lack of evidence and the lack of legal and procedural possibilities for making an application for revision are unprofessional and unlawful and they even prejudge ICJ's final decision. Even if the application for revision is filed and published, the final decision on initiating the revision would be made by ICJ as the competent court. Therefore, any unlawful statements and comments do not contribute to legal certainty but only create political tensions.
Political representatives of Serbs in BiH did not challenge BiH lawsuit before ICJ
It is completely unclear what attitude is assumed by Serbian political and other representatives in Bosnia and Herzegovina towards the lawsuit filed by Bosnia and Herzegovina before ICJ in 1993 against the Federal Republic of Yugoslavia, i.e. Serbia, for the violations of the Genocide Convention. First, Momčilo Krajišnik as the Serb member of BiH Presidency did not challenge the lawsuit against Serbia although he was entitled to do so within three months. Namely, every member of BiH Presidency has a right to oppose international agreements and acts that were signed by one of the so-called three sides of BiH during the period between 1992 and the signing of the Dayton Peace Agreement. Neither did the National Assembly of Republika Srpska challenge the lawsuit against Serbia before ICJ within the three month deadline. When Sakib Softić was appointed as the agent of Bosnia and Herzegovina before ICJ after the suspension of Muhamed Šaćirbegović, the Serb member of BiH Presidency again failed to advocate the vital national interests, letting agent Softić obtain the legitimacy to represent Bosnia and Herzegovina before ICJ in the lawsuit against Serbia. It is obvious that the Serb representatives in Bosnia and Herzegovina did not feel a need to stop the lawsuit. Analysts believe that Radovan Karadžić and Momčilo Krajišnik as well as some other Serbian representatives who were dissatisfied with the (re)division based on the Dayton Peace Agreement thus took revenge on Slobodan Milošević and wanted to create the permanent situation for the existence of the lawsuit, thus holding the Serbian politics in the hostage status and keeping Serbia's attention on the issues concerning Republika Srpska. Anyway, this strategy has resulted in the final judgement of ICJ according to which Serbia was found guilty of failing to prevent and punish the genocide while the army and police forces of Republika Srpska were convicted of committing the crime of genocide in Srebrenica. It is interesting that Serbia celebrates the acquittal of its direct responsibility for genocide as its victory, although it was convicted of the most atrocious crime of genocide. According to analysts the political statements made by Serbian representatives in BiH actually represent a threat to Republika Srpska, since they are aware that the revision process could eventually open the role of Republika Srpska while there is almost no mentioning of Serbia in this relation. In some of their statements they even claimed that the revision process could lead to the disintegration of Bosnia and Herzegovina. The impression is that the representatives of Republika Srpska are more concerned and anxious than the official Belgrade about opening the revision proceedings. Ever since ICJ passed the judgement on 26 February 2007 that the Army of Republika Srpska (VRS) and the Ministry of Interior of Republika Srpska committed genocide in Srebrenica, the Serbian representatives in Bosnia and Herzegovina have constantly denied the genocide and opposed ICJ judgement as well as the judgements adopted by the International Criminal Tribunal for the Former Yugoslavia (ICTY).
Why did Serbian representatives in BiH accept ICJ's decision that the Army and the Ministry of Interior of Republika Srpska are directly responsible for the crime of genocide?
Analysts are wondering why the Serbian representatives in BiH, who have been constantly denying the genocide, did not challenge the findings in ICJ judgement, bearing in mind that in the judgement it was the Army and police forces of Republika Srpska that were convicted as direct perpetrators of genocide and not Serbia which was actually sued for that crime. Bosnia and Herzegovina claimed Serbia's responsibility, while ICJ only convicted Serbia for failing to prevent and punish the genocide, while the authorities of Republika Srpska were found to be directly responsible for committing the genocide. Perhaps the political representatives of Serbs in Bosnia and Herzegovina expected Serbia to make an application for revision in which it would deny the responsibility of both Serbia and Republika Srpska, or perhaps they were both satisfied with the judgement that found them responsible? However, it is strange that Serbia and Republika Srpska have been denying their responsibility for genocide at all political and judicial instances instead of doing that before the international court which has proclaimed them as responsible for genocide.
Eventual revision initiated by Bosnia and Herzegovina would be definitely focused also on Serbia's responsibility for genocide in Srebrenica, which makes it even more unclear why the Serbian political representatives in Bosnia and Herzegovina would put the interests of Serbia before the interests of Republika Srpska.
Čović's and Đukanović's role in the revision proceedings?
Analysts have noted that the final activities for eventual revision of ICJ judgement by Bosnia and Herzegovina have started one year ago. The period of nine years is a fully realistic time for a state to investigate and gather all the relevant information and evidence that may be decisive for opening the revision proceedings. The 1993 judgement in which Bosnia and Herzegovina sued the Federal Republic of Yugoslavia(Serbia) for violations of the Genocide Convention was actually the only possibility to establish criminal responsibility of states before ICJ, bearing in mind that severe violations of international humanitarian law fall within the competence of criminal courts at national and international level, such as the International Criminal Court (ICC), the International Criminal Tribunal for the Former Yugoslavia (ICTY) and others. There were many other cases of lawsuits between states dealt with before ICJ, such as lawsuits for armed activities on the territory of another state (e.g. the Democratic Republic of the Congo v. Uganda) in which ICJ decided that for example Uganda violated the principle of not using force in international relations and the principle of non-intervention, i.e. that Uganda violated its obligations arising from the international humanitarian law conventions.
Analysts believe that proving criminal responsibility of another state for having committed genocide is an incomparably more difficult and complex task for a state than proving other forms of state responsibility. This is even more obvious since in the legal process of Bosnia and Herzegovina v. Yugoslavia ICJ applied the highest standards that had been previously applied by ICTY in the judgements and legal processes against individuals responsible for the crime of genocide in Bosnia and Herzegovina. Having applied the proceedings and standards of another international court (ICTY) which examines individual responsibility, ICJ has set an almost unreachable standard for establishing direct responsibility of a state for violating the Genocide Convention. Moreover, ICJ only accepts ICTY's final judgements, which is also a subject of criticism and legal analyses. A lot has been written about ICJ judgement in the dispute between Bosnia and Herzegovina and the Federal Republic of Yugoslavia (Serbia) and there is still an open issue of the definition of genocide or of the way in which genocide can be proven before an international court in order to establish individual or state responsibility. Experts believe that different approaches should be applied in proving the state responsibility. In this context it is considered that it was a very difficult task for Bosnia and Herzegovina to gather the evidence for the revision proving the intent of committing genocide or to collect further information on the violation of the Genocide Convention by Serbia. There is endless evidence of Serbia's (then the Federal Republic of Yugoslavia) involvement in the war in Bosnia and Herzegovina, and Serbia does not reject its responsibility for having been actively involved in Bosnia and Herzegovina through Yugoslav People's Army/Armed Forces of Yugoslavia (JNA-VJ) and the 30th personnel centre, its generals, Ministry of the Interior and special units by providing continued military, logistic and financial assistance to Bosnian Serbs. However, ICJ established that Serbia did not issue orders to JNA-VJ, special units of the Army of the Republika Srpska and the Ministry of Interior of Republika Srpska to commit genocide (ICJ was not competent for other crimes such as extermination, war crimes and other crimes against humanity) and that when the units of the Federal Republic of Yugoslavia (Serbia) were present in Bosnia and Herzegovina and committed crimes (such as the Scorpions paramilitary militia) they were subordinated to Republika Srpska, i.e. to the Army of Republika Srpska or to the Ministry of Interior of Republika Srpska or they were working “autonomously”.
Former Chief of the Yugoslav Army General Staff Momčilo Perišić was sentenced to 27 years of imprisonment byICTY, but ICTY President Theodor Meron changed the standards under the influence of higher instances and acquitted Perišić of all charges, including those for Srebrenica, in appeal proceedings (he had earlier presided the Appeals Chamber which acquitted Croatian general Ante Gotovina). Although “Meron's standards” (see the following links: http://www.ifimes.org/en/8487-war-crimes-and-genocidecan-theodor-meron-preserve-ictys-reputation , http://www.ifimes.org/en/8603-ictymeronization-of-our-future , and http://www.ifimes.org/en/8898 ) were changed after a series of ICTY judgements, Meron as ICTY President never accepted the application for the revision of Perišić's acquittal, which was made by ICTY Chief ProsecutorSerge Brammertz.
Bakir Izetbegović and legal experts are under strong pressures from the representatives of the international community as well as from the member of BiH Presidency and Chairman of Croatian Democratic Union in BiH (HDZ BiH) Dragan Čović. The question is whether and to what extent did Montenegro – which has been absolutely protected from the revision process after Serbia officially assumed legal succession and thus took the full responsibility before ICJ – help Bosnia and Herzegovina to reveal Milošević's regime and the committed genocide, especially bearing in mind the archives of the Army and the State Security Service (SDB) of former Yugoslavia, which are located in Podgorica. Certain Bosnian-Herzegovinian leaders have very close friendly relations with Montenegro's Prime Minister Milo Đukanović. President of the Union for a Better Future of BiH(SBB) Fahrudin Radončić has especially strong ties with Đukanović, and it is logical that SBB's leader would do anything to make sure that his friend Đukanović helps in achieving justice and proving the truth.
Analysts believe that in case certain decisions are taken at the state level, HDZ BiH followers and the representatives of Croats will not officially obstruct filing an application for revision by Bosnia and Herzegovina before ICJ. By contesting the revision the Croats and Croatia would enter the process of contesting the crime, while it is obvious that the revision could be focused also on the crime of genocide in Srebrenica and the establishing of Serbia's direct involvement in it. Does the Croatian nation truly wish to prevent the victims of Srebrenica to realise their rights and to exploit the possibility for revision is the“million dollar question” for Dragan Čović. It should also be recalled that the lawsuit for genocide filed by Bosnia and Herzegovina also includes Croatian victims of war in the territory of Bosanska Krajina. Thus Čović assumes a huge historical responsibility for groundlessly taking sides with the official Belgrade (and not Republika Srpska or any Serbian political representative in Bosnia and Herzegovina, bearing in mind that the latter may apply for revision against Serbia) when it comes to making an application for revision by Bosnia and Herzegovina before ICJ.
On whose behalf Ambassador Moore is speaking?
Ambassador Jonathan Moore, Head of the OSCEMission to Bosnia and Herzegovina, has with his public statements that there is no new evidence and that Bosnia and Herzegovina should not make an application for revision before ICJ severely misused his authority and tried to prevent the opening of the revision by exerting public pressure on Bakir Izetbegović and the legal team of Bosnia and Herzegovina. The question is on whose behalf Ambassador Moore is speaking and should he be dismissed as OSCE's representative in Bosnia and Herzegovina because of such statements. The representatives of international community should and must ensure democracy and the rule of law. Ensuring the rule of law means ensuring the conditions for a state which finished the legal proceedings against another state before an international court to be able to resort to the guaranteed international legal remedy of revision before ICJ as one of the main bodies of the UN. Referring to justice while at the same time exerting political pressure is a hypocritical act by Ambassador Moore, since justice can only be achieved though the prescribed civil, international and criminal proceedings for punishing individuals or states that committed crimes. Another aspect of “justice”has been known throughout history when justice was taken“into one's own hands”,which inevitably lead to violence. Moore's statements actually mean that the victims and the state should reach justice in a private and unacceptable way instead of resorting to legal proceedings, which leads to anarchy, violence and even crime.
What and who endangers regional security?
Prime Minister of the Republic of Serbia Aleksandar Vučić could play a major role if he called upon the Bosnian Serbs to cool down the political tension and let the process before ICJ be finished if Bosnia and Herzegovina makes an application for revision. In case Serbia announces to make or makes an application for revision, the question is whether anyone – including Bosniak representatives – would politically oppose such request for revision of ICJ judgement? Definitely not. All those who are against the revision that would be initiated by Bosnia and Herzegovina and who claim that there is no new evidence, including certain international representatives, should understand Vučić's appeal that it is the ICJ and not the politicians who can decide whether there is any new evidence and whether Bosnia and Herzegovina can initiate the revision. It is also clear that the decision to make an application for revision can only be made by the legal team of Bosnia and Herzegovina on the basis of arguments, and not by the politicians who are trying to decide whether there is any new evidence or not. This is a legal and not a political decision. Initiation of revision before ICJ could restore trust if the revision process is regarded as a legal act. While the opponents of revision believe that initiating this process would endanger Bosnia and Herzegovina and regional security, it is actually those same opponents who are endangering that security. Another question is whether the national representatives in Bosnia and Herzegovina and the international representatives who oppose the revision believe that Serbia has the right to apply for revision if it deems that it was unjustly convicted of not preventing and punishing genocide, or would they oppose Serbia's application for revision based on new evidence that the army and police of Republika Srpska were not responsible for the crime of genocide in Srebrenica. Just like no one could theoretically or factually prevent Serbia from applying for revision if the legal team of Serbia found out that there is new evidence, no one should prevent the legal team of Bosnia and Herzegovina from doing the same. Why should Bosnia and Herzegovina be in a different position than Serbia or any other state and why should it be denied the right to use the available legal remedies in order to prove that the most atrocious crimes were committed in the territory of Bosnia and Herzegovina in the period 1992-1995?
Ljubljana, 14 February 2017