Comment 10 Mar 17

Genocide Appeal’s Rejection Sends Bosnia Critical Message

The International Court of Justice’s refusal to consider an application to review its 2007 ruling in Bosnia’s genocide case against Serbia could shake up the political scene and offer the country some vital lessons.

Srecko Latal BIRN Sarajevo
Mourners at Srebrenica last year. Photo: Anadolu.

The letter from the International Court of Justice registrar which informed Bosnia’s tripartite presidency on Thursday that the controversial revision appeal had been rejected since it was not submitted by any of country’s institutions was a message that came at the critical moment for the increasingly uncertain future of Bosnia and Herzegovina.

Whether this message will be heard and understood by anyone remains to be seen.

The chances are slim, however, given the fact that vast majority of country’s politicians, intellectuals, NGO activists and media workers remain focused on their narrow interests - ignoring, doing nothing about or even contributing to what looks like the looming final break-up of the troubled country.

The appeal for the revision of ICJ’s ruling - which found Serbia guilty of failing to prevent the 1995 genocide of Bosniaks from Srebrenica, but not for the genocide itself - was lodged last month by a group of mostly Bosniak politicians and intellectuals.

The initiative came in the middle of Bosnia’s dangerously escalating crisis, which has been fuelled by intensified Bosniak leaders’ unitarist, Bosnian Croat leaders’ autonomist and Bosnian Serb leaders’ separatist efforts.

The request for the revision hinged on expectations that Sakib Softic, Bosnia’s legal agent in the original case, which was held before the ICJ between 2000 and 2007, still had the mandate to represent the country at the UN court in The Hague.

Citing this reason, the mainly Bosniak group launched the procedure less than two weeks before the end of the ten-year appeal period, claiming that it was aimed at ensuring truth and peace for the victims of the Srebrenica massacres and their families.

The majority of ethnic oriented Bosniaks, as well as ‘liberal’ Bosnians in general - including representatives of academia, NGO and the media community - either supported the move, or at least avoided to criticising it publicly, so as not to anger influential victims’ groups and war veterans’ associations.

But the appeal request triggered a major outcry from most Bosnian Serb officials, and among the country’s Serb population in general, arguing that they they were not consulted and so the case was not representing the country as a whole and its joint institutions.

The Bosnian Croat leadership, claiming neutrality, refused to either support or reject the initiative, thus avoiding angering either their Bosniak or Bosnian Serb political allies.

Serbia warned meanwhile that the request risked the fragile and tense relations between the two countries.

The Bosniak initiative also failed to win support even among usually Bosniak-friendly international actors, like the US and EU, which officially remained neutral.

But unofficially, through various diplomatic channels, both tried but failed to persuade the Bosniak leadership to refrain from launching the initiative.

Destined to fail

The Bosniak member of Bosnia's tripartite presidency, Bakir Izetbegovic. Photo: Anadolu.

The request for the review of the case seemed destined for failure from its onset, since those behind it appeared to be more focused on its political implications and their political benefits rather than victims’ wellbeing or anything else.

Numerous local and international experts warned that the initiative had weak foundations as it relied on hopes that lawyer Softic’s mandate would still be recognised by the ICJ.

Amid the mounting political clashes and procedural controversies, the legal basis for the revision seemed to be increasingly ignored.

But the extent of procedural, legal and political mistakes made by the Bosniak leadership while launching the initiative in this particular way started to surface when local media published a document prepared by Nevenka Tromp and Sir Geoffrey Nice, both former senior lawyers at the International Criminal Tribunal for the Former Yugoslavia, ICTY.

In the paper, dated February 2017, the two outlined the chronology of their contacts with the Bosniak leadership between 2007 and 2017.

Tromp and Nice expressed their joint opinion that various cases heard at the ICTY during that period provided ample evidence of Serbian involvement in Bosnian war, which they argued was a solid basis for a revision of the ICJ ruling clearing Serbia of involvement in genocide.

But Tromp and Nice said in the document that despite this, the Bosniak leadership - as well as representatives of victims’ associations - failed to do anything concretely to respond or follow up on their communications.

The two former ICTY officials said that this failure eventually threatened to undermine even the legal basis for the revision, as the ICJ rules and regulations required an appeal to be lodged not later than six months after new evidence was revealed.

Tromp and Nice wrote that they were finally approached by representatives of the Bosniak leadership in December 2016, and started a brief “semi-commercial” stint on this case on January 3 this year.

Yet they outlined what they thought to be the serious legal and procedural flaws of the appeal, starting with the obviously dubious legality of the mandate of Softic.

Their opinion was corroborated by a written statement which the ICJ president, judge Ronny Abraham, issued later on Thursday, in which he also outlined the chronology of this case from ICJ’s perspective.

Abraham said that on May 25, 2016, Softic inquired whether his appointment as Bosnia’s agent was valid for the initiation of proceedings for revision.

“By letter dated 26 May 2016, the registrar informed Mr. Softic that a new appointment would be required. No document attesting to the appointment of Mr. Softic for the purposes of proceedings for the revision of the 2007 judgment has been received by the court [since then],” Abraham said in his statement.

Abraham also cited letters sent by the three members of Bosnia’s tripartite presidency on February 28, March 2 and 3.

In their letters, the Bosnian Serb and Croat members of the presidency, Mladen Ivanic and Dragan Covic, stressed that neither the presidency nor any other joint institution supported the revision appeal.

Only the Bosniak presidency member, Bakir Izetbegovic, claimed that Softic’s mandate was still valid.

Yet Abraham’s statement, as well as the document put together by Tromp and Nice, clearly show that Softic and the Bosniak leadership were duly informed about the fact that Softic did not have mandate to represent Bosnia before the ICJ without a new approval from the presidency.

Despite all this, the Bosniak leadership moved on with their initiative.

A blow to Bosniak leaders

The International Court of Justice in the Hague. Photo: ICJ.

Some Bosniak officials say they were forced to launch the appeal for the revision because otherwise they would have been publicly chastised by victims’ associations for not doing so.

Faced with two bad options, they opted for what they considered the lesser evil, apparently ignoring the possible effect of the case on ethnic relations in and around Bosnia, as well as the future of their own country.

The gaffe with the botched revision came after a series of outbreaks of turmoil within the Bosniak leadership, particularly inside the ruling Bosniak ethnic party, the Party of Democratic Action, SDA.

After being the main political representative of Bosniaks for much of the past 25 years, the SDA has been facing growing internal and external criticism alleging that it, like all the other main parties in Bosnia, has become too corrupt, self-centred and focused on narrow political or even personal interests, while being detached from the population and ignoring the catastrophic political, economic and social crisis in the country.

This criticism has been steadily growing since the 2016 local elections in which the SDA still came out as the single strongest party in Bosnia and Herzegovina although it also lost many municipalities considered its traditional bastions, as well as many of its popular local representatives, who successfully ran in the ballot as independent candidates, defeating SDA candidates.

Growing political divisions within the SDA also strained relations between the party and its political partners, such as the second-strongest Bosniak party, the Alliance for Better Future, which is headed by the media and construction tycoon Fahrudin Radoncic.

In this situation, the botched revision scheme added fuel to these ambitions and triggered a wave of new criticism focused on the SDA and its leader, Bosniak presidency member Bakir Izetbegovic.

Many Bosniak politicians - both within the SDA and in other parties - smelled blood and saw their chance to either replace Izetbegovic, or divide and topple the entire SDA, during or after the next general elections, which are scheduled for October 2018.

The painful and humiliating blow delivered by the ICJ’s decision will certainly further weaken the SDA and Izetbegovic, and potentially lead to the first serious struggle for the leadership position in years. Some predict it could also lead to further divisions in the SDA or the splintering of the party.

As the latest evidence suggested that some of the victims’ associations also failed to play their part and help prepare a better revision case, the ICJ’s decision may also affect some of these associations.

Many of these organizations have enjoyed a special status in society because of concern for their suffering, and have become important players in domestic politics.

The threat of disintegration

The three Bosnian presidency members: Izetbegovic (left), Covic (centre) and Ivanic (right). Photo: Anadolu.

While the ICJ decision to reject the revision appeal represents a major defeat for the Bosniak leadership, and reveals their continued obsession with their role as the main victim of the wars in 1990s, this should not be perceived as a victory for Bosnian Croat or Serb leaders either.

Many Bosniaks say that the revision appeal was launched, at least partially, as a Bosniak reaction to the continued downplaying of or ignorance about the Bosnian Croat and Serb wartime leaders’ responsibility for what happened during the 1990s conflict.

It was also a Bosniak reaction to the continued - and increasing - threats against Bosnia’s integrity that keep coming from some Bosnian Croat and Serb leaders.

In return, many Bosnian Croats and Serbs say it is up to Bosniaks, as the single biggest ethnic group in the country, to create an environment that is acceptable and conducive to other ethnic groups.

In his statement Thursday, ICJ president Abrahams stated that after considering the three separate letters from the three members of Bosnia’s presidency, the court concluded that “their content demonstrates that no decision has been taken by the competent authorities, on behalf of Bosnia and Herzegovina as a state”.

While the ICJ declared that the unilateral attempt to revive the case made by a part of the Bosniak leadership did not represent Bosnia’s joint institutions, many local and international experts - and many Bosnian citizens alike - have increasingly been pondering what and where Bosnia is today.

Just as the ICJ decision suggests, almost none of the political or civic actors in the country at the moment respect or accept all of Bosnia and Herzegovina, with all of its complexities, ambiguities, absurdities, different views and interests.

Instead, the various players promote particular interests and views that are focused on the narrow ethnic or even narrower political interests of certain groups, while the idea of a joint country increasingly seems to be ignored if not yet abandoned.

Meanwhile, weakening institutions, blocked reforms, rampant corruption, persistent unemployment, a fading economy, worsening living standards and social and other public services, as well as endless petty political games, have forced tens of thousands of Bosnians to leave the country in the last two years to seek a better future elsewhere.

Many more would like to leave but cannot afford to do so, surveys suggest.

Shattered by years of constant political, economic and social downturn, the country seems to be closer to becoming a failed state or to breaking up than ever before.

Many increasingly fear that this situation, if it continues along the same course, will sooner or later lead to new social or ethnic violence - or both - which could easily and swiftly escalate in the tense and divided country.

Some were concerned that the revision appeal - had it been accepted and processed by the ICJ - could have triggered such a scenario, starting with a withdrawal of most if not all Bosnian Serb representatives from state institutions.

This threat seems to have been at least temporarily averted, but new crises loom on the horizon, suggesting new troubles and complications ahead.

While international actors - primarily the EU - still may have a chance to arrest Bosnia’s dangerous crisis, it is now more than clear that 21 years after the war, only the people of Bosnia and Herzegovina, with all its politicians, academics, civic society activists and media, can build a joint future.

If not, they might well relive their violent past.

Srecko Latal is a journalist, editor and analyst who has been covering the Balkans since the 90s.

The opinions expressed in the comments section are those of the authors only and do not necessarily reflect the views of BIRN.

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