Genocide in Bosnia and Herzegovina at the International Courts

Sir Geoffrey Nice

  1. The privilege of speaking fi rst at this important conference comes with the duty to speak honestly and frankly. Giving advice soaked in sympathy, telling an audience largely what it wants to hear is to let what may be good advice get blown away in a strong wind of thoughts and emotions for which there may be consensus but that will not necessarily blow in any useful direction.
  2. Friends of states, or parts of states, in distress must be like doctors or surgeons: they must not tell the patient all will be well if it is not and they must not respond to apparently well wishing relations who ask the doctor or surgeon to tell the patient all will be well to please the relations.
  3. And so to the topic of this conference: ‘Is Srebrenica remembered and will it always be?’ Will the genocide be counted as it should in the historical annals of the world.
  4. A few words about genocide and the diffi culties it causes as a chargeable crime. Coined after the Second World War and thereafter allowing – by the Genocide Convention – states to brings actions against states to allege breaches of the convention, it fi rst featured as a charge against individuals in the ICTY and ICTR, where the charge was specifi cally included in the enabling statute. Its diffi culties arise from the very specific mental state that needs to be proved.
  5. The test – as it has developed – is set out in the statute of the International Criminal Court as:
    Article 6 Genocide
    For the purpose of this Statute, ‘genocide’ means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:
    1. Killing members of the group;
    2. Causing serious bodily or mental harm to members of the group;
    3. Deliberately infl icting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
  6. It is not necessarily the worst mental state to be proved for any crime. The mental state of the pilots who crashed into the twin towers – who were not genocidal – was very arguably worse.
  7. Nothing charged as genocide could not now be charged as crimes against humanity and development of genocide as a crime may be rooted, by a slightly complicated route, in the desire of the USA not to be caught out by crimes charged in Nuremberg for off ences committed in the USA against Negroes or Native Americans.
  8. But the term Genocide is now part of everyman’s thought and speech as the gravest of crimes and – for the time being at least – investigation of when it occurs is a proper priority of national and international bodies alike. It has been applied by courts to Srebrenica. It is the common language of many for genocide.
  9. However it is always helpful to ask the hard unpleasing questions. In your case why do you want the world – as well as yourselves – to remember? For what purpose? What will better memory achieve? Is there a purpose beyond a form of retaliation or almost revenge? If not is it so important?
  10. I ask such questions not out of any personal belief in there being no purpose but to ensure we start where we should.
  11. Srebrenica is remembered, but no longer that well remembered, and with no guarantee of it being that well remembered in decades and centuries to come.
  12. The increase in mass communication is responsible but not to blame.
  13. It was in part the ability of the world to communicate by television (now it would be TV and the internet) that brought the tragedy of Srebrenica to the public attention so quickly.
  14. It is television and the internet that has brought so many other current – and indeed historic – tragedies to the public attention so that the attention on any one of these unhappy events, such as Srebrenica itself, is necessarily diluted. Those of us in the fortunate parts of the world that are not in the middle or in the immediate aftermath of the tragedy of armed confl ict have only a limited part of our lives to devote to the misfortune of others. And quite right too. It is true that we are put into life – never as volunteers – by the violence of creation but we do not have to spend all our lives in contemplation of the continuing suff ering of others (until what may be our own ‘violence in death’ if there is, as so often, suff ering before the end of life).
  15. This natural dilution is reinforced by other somewhat random facts. Often it is the eff ect of a visual image that leaves one tragedy strong in the international citizen’s mind while others fade unnoticed. Flash any image of the Nuremberg trial court with Goering and the others before most reasonably educated people in many or most countries of the developed world and the viewer will know what it is and then connect it to the holocaust of the Jews – arguably a little falsely because the trials in Nuremberg were less concerned with the fate of the Jews than with aggressive war against the allies. But the image along with other publicity of many kinds and endless entertainment fi lms ensures the holocaust is never forgotten and does not lose its position as the defining wickedness of human beings against human beings.
  16. There is no present celebrity able to do that much. Angelina Jolie has done what she can but her focus is arguably not on what is really wanted.
  17. The suff ering of the Armenians still counts after a hundred years, the millions killed by Stalin not really at all, the Koreans and the Vietnamese massacred in the course of imperialist surrogate wars fought over the choice of economic models count for little and even the Khmer Rouge killings count only moderately these days. The half million and more Indonesians killed in an anti-communist government purge of 1965 are almost unknown, never having been championed anywhere.
  18. The number of enthusiastic volunteers from other countries who are keen to help and honour you and the many thousands who died, who suff ered and have already died, or who have suffered and fear death may come to them before any proper public resolution of their suff ering is diminishing and will continue to diminish. Ultimately, nationals apart, it will be only the historians who will be interested in what happened at Srebrenica, and then only for academic / intellectual reasons.
  19. This hard truth MUST be grasped however diffi cult. It is a truth crucial to the path ahead.
  20. The answer to these and other diffi culties in maintaining a memory of Srebrenica – manifested by this conference – is in the lesson we give children starting on adult life when we tell them, ‘no-one owes you a living’. No one owes Bosnia the duty of setting the record straight. No one except, of course, Bosnia itself.
  21. The international community – the EU, the UN – will only help Bosnia in what it wants if its interests coincide with the interests of the international institutions. Why? Another horrible truth is this: victims do not necessarily count for that much where other interests may confl ict. An example from elsewhere explains this rugged reality. Burma. For some time – decades – liberal world opinion was behind Ann Sang Su Ki – who was in various forms of detention – and the thousands of Burmese who suff ered oppression and persecution by Burma’s – Myanmar’s – junta. Ann Sang Su Ki was released and Burma was seen to be a land great for tourism and for the extraction of minerals to the good of international business. The interests of the victims of oppression are now more easily forgotten – no longer do UK/US/international activists get much government support for their initiatives for referral of Myanmar’s leaders to the ICC. The message from governments formerly supportive of such a referral is that perhaps these things should be overlooked given the slight progress of the country and the economic and other interests that would be aff ected by putting human rights and justice high on the list of things the Myanmar Government should be forced to deal with.
  22. We would like to think the international and national courts to be free of political pressure, and largely they are. But there are clear examples otherwise:
    1. Verbatim records – the Supreme Defence Council Records – of 9 years of meetings involving Milošević and other Serb and Montenegro leaders and showing their support for the Bosnian Serbs at the time of Srebrenica had their most valuable parts blacked out from public view by an unnecessary ‘deal between Mrs del Ponte and the Serb Government that served no interest but Serbia’s. THE same blacked out documents served the ICJ whose judgment was regarded by so many in Bosnia as a terrible failure and a wrong. Yet the ICJ did not demand to see the passages blacked out.
    2. The Milošević prosecution were ordered by a particular country not to seek to obtain transcipts of Intercepts of telephone conversations between Milošević and Mladić at the time of Žepa. Mrs Del Ponte complied with the order. No reason was given (at least to me); one probable reason is that however helpful the material might have been for the trials process it would have been embarrassing and ‘unhelpful’ for it to be known how much the ‘West’ actually knew of what was happening at Srebrenica and Žepa at the time.
    3. An extract from the infamous Scorpions video that showed the killing of six very young men from Srebrenica by a unit reporting to Serbia was played in the Milošević trail. It persuaded many in Serbia to accept that Srebrenica as a massacre had indeed happened and was not merely Bosnian propaganda. However I was not allowed to investigate further up the chain of command of the unit to the senior fi gures in Serbia who must have instructed the unit and known what it was doing. The Serb prosecutor – Vukčević – who had no choice but to prosecute in Serbia those shown on the fi lm failed to investigate higher either. He said to me that there was insuffi cient evidence – in the country where all records of army and politicians should be available on demand by a prosecutor!
    4. Similar more general but grave shortcoming are recorded in Serbia’s failure to investigate at all the overall plan to transport the bodies of Kosovo people killed in the confl ict from their graves in Kosovo to places in Serbia that would not have been discovered but for the chance of one of the transport lorries being found in the Danube and revealing by its gruesome load what was afoot. General Obrad Stavanović, who was in the room with Milošević when the ‘no bodies no crimes’ plan was made – and others of his rank – have not be investigated at all.
  23. Were victims interests put very high when – in the above examples – other interests must have required diff erent considerations be given priority in the formulation of what should have been dispassionate decisions? And sadly wherever the interests on victims and the interests of those who may be able to apply political pressure to international criminal courts and tribunals do not coincide – as happens – does the court turn on the body applying pressure and say it will not yield because the victims’ interests are at risk? The probabilities are that it will yield and damn the victims.
  24. In a diff erent place and from a diff erent point of view– the ICTY building itself – when the judges had to decide whether to favour the rights of the accused to see ‘exculpatory material’ or to allow states – including States such as Serbia as well as states like the UK to provide and keep confi dential material for ‘lead purposes’, the states were favoured. Does this show a clear focus on victims? Probably not. Looking after the interest of states is always a high priority.
  25. Further, recent decisions of the ICTY drew alarm from tribunal watchers that something odd was afoot and then a judge – Judge Harhoff – said the judges were under improper pressure to reach certain conclusions. Was his complaint – that led to his losing his job – wholly groundless? If not what does that this little history show about whether victims could be confi dent that in the corridors of judges their intersts, and always their interests, that came first?
  26. And in other countries like Rwanda Uganda, Cambodia there is good evidence of pressure being applied to the courts – sometimes completive eff ective – to have one side of a conflict but not the other tried. What does that show about the interests of the victims?
  27. This is the environment in which you live – the place in which your nation hopes to do well, the place about which those acting as your ‘doctors’, if you like, have to warn you.
  28. And, as you will hear later, one country has from the start recognised that courts serve more purposes than justice and allow writing and rewriting of history in its favour. Bosnia is NOT that country.
  29. What would a doctor say to a patient at risk for whom few solutions may work but where nothing is certain? Perhaps s/he would ask what the patient really wants: to survive for ever on whatever terms; to lead a life brave but defi ant of what threatens; to live a prudent life, cautious of immediate outcome etc etc.
  30. I assume – and have done for several years when discussing these issues with those from your country interested in its future – that the principal concern is to leave a proper record of its suff ering for its own proper purposes, not to generate future confl ict but to become part of the material that alerts the world to methods of reducing repetition.
  31. What must you do? There are less than two years left for an attempt at revision of the ICJ judgment. There will be trigger events on which an application can be made and one thing about the law is this. If you do not try you will not succeed. If you do try you may fail but you will have left a record of your case. If you fail once, try again – you will often be surprised how far determination gets you. But do nothing and nothing will come to you. The world owes Bosnia nothing where setting a record is concerned. It is your responsibility no one else’s.
  32. Look around at what others are doing when the international community leaves them dissatisfi ed. The citizen – and indeed a state – is not dependent on the generosity and decency of international organisations. Bosnia can establish its own tribunal – ‘informal’ if you wish – and ensure the best standards are applied to determination of what crimes were committed in Srebrenica and elsewhere and by whom. It would be hard work and it would demand respect for fairness in allowing other positions to be stated and explored. But it is possible.
  33. Formal and informal judgments properly constructed will serve a present and a future purpose beyond present contemplation. Consider the Russell tribunal into Vietnam – the recent Iran tribunal and the 2000 ‘Comfort Women’ tribunal. These all showed that the citizen has power in her / his hands to set records that will be one way of ensuring memories are left. That is what this conference is about. At its conclusion we will know more about what citizens can and should do in their own interest in having their country’s history properly recorded and in Srebrenica being properly remembered. Ask not just what others can do for you; remember Kennedy.

Sources

  1. Sluiter, A. (2016). Remembering the Bosnian genocide: justice, memory and denial. Institute for Islamic Tradition of Bosniaks.

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