National Congress of the Republic of Bosnia-Herzegovina
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NEWSLETTER No. 465 - International issue
April 24, 2007.
The genocide verdict was seriously affected by the failure to gain
access to confidential documents
By Anes Alic in Sarajevo
for ISN Security Watch
The
discovery of new evidence may lead Bosnian legal experts to request a review of
the International Court of Justice (ICJ) ruling that cleared Serbia
of responsibility for the genocide of Bosniaks and Croats. Legal experts say
that the outcome of the case was seriously affected by the failure to gain
access to confidential documents from the war crimes trial of former Yugoslav
leader Slobodan Milosevic.
Last week, a former Milosevic prosecutor accused Carla Del Ponte, the chief
prosecutor at the Hague-based International Criminal Tribunal for the former
Yugoslavia (ICTY), of cutting a deal with Belgrade to withhold evidence during
the Milosevic trial that would have helped Bosnia's case against Serbia.
The ICJ on 26 February cleared Serbia
of direct responsibility for genocide and complicity in genocide in Bosnia
during the 1992-1995 war. In the key verdict, the court ruled that Serbia
had "not committed genocide, through its organs or persons whose acts
engage its responsibility under customary international law."
The court said the July 1995 massacre of nearly 8,000 Bosniak (Muslim) men and
boys in the eastern town of Srebrenica
was an act of genocide committed by Bosnian Serbs. Serbia
was found guilty only for failing to prevent the genocide and punish those
responsible.
Black out
In 2003, the Serbian government sent boxes with hundreds of documents to the
ICTY. Among other things, the documents contain minutes of meetings of the
Supreme Defense Council, the top decision-making body at that time, created in
1992 and comprised of high-ranking Serbian politicians and military officials,
as well as Bosnian Serb officials, including war time army commander Ratko
Mladic, who is wanted by the ICTY.
Passages in the documents were blacked out at the request of the Serbian
government and the court did not request the complete original archive.
According to the ICTY Statute, any country handing over sensitive documents has
the right to demand protective measures on some documents, due to national
security concerns. At one point, the court rejected a Bosnian request to demand
the full, uncensored documents.
However, last week, former ICTY prosecutor Geoffrey Nice sent a letter to the Zagreb
daily Jutarnji List accusing Del Ponte of striking a deal with former Serbian
foreign minister Goran Svilanovic to apply protective measures to the documents
sent to the court in 2003. Nice, who led the Milosevic prosecution until the
latter's death last year, wrote that the existence of these documents was
established by his team in 2002, and that he tried to make them public.
"Del Ponte disregarded my advice and agreed in principle that a
substantial part of the records could be kept from the public, as the court
subsequently ordered," Nice wrote. "There was no legal basis for the
withholding of the records from the public. There was no conceivable reason for
making a deal with Yugoslavia.
It served only one purpose: to keep Belgrade's
responsibility from public scrutiny and, significantly, from the International
Court of Justice."
The Office of the Prosecutor (OTP) rejected the allegations it had concealed
documents from the ICJ or made any kind of deal with Belgrade,
but confirmed that the prosecution had had frequent correspondence with Belgrade
regarding the delivery of the documents. OTP spokesperson Olga Kavran then told
a Hague press briefing on 18 April that although correspondence between
government officials and the OTP was a regular event "the suggestion that
there was a deal to conceal evidence is completely false."
Kavran also cited the ICTY's Rules of Procedure and Evidence, which says that
only the judges and not the prosecutor can decide on the protective measures to
keep material from the public. However, she did say that during one
correspondence with Belgrade, the
prosecution said it would not object to granting "reasonable protective
measures" on some documents.
The chief legal representative for Serbia
in the ICJ case, Radoslav Stojanovic, told Serbian media that Nice's
accusations were absurd and that his letter coincided with US media reports
criticizing the ICJ's February verdict. Stojanovic told Belgrade-based Radio
B92 that "such writings are related to resolving Kosovo's final status,
trying to put pressure on Serbia
to agree with the province's independence, by blackmailing her with a revision of
the verdict."
The evidence
Sakib Softic, Bosnia's
legal representative, believes that evidence mentioned by Nice could be crucial
for proving the involvement of Serbian authorities in the Bosnian war. He says that
even the ICJ's vice president, Jordanian judge Awn Shawkat Al-Khasawneh,
suggested the genocide ruling was based on incomplete evidence. "The
outcome of the verdict surely would be different if the key evidence from the
Milosevic trial were not hidden from the public and the ICJ," Softic told
ISN Security Watch.
Softic said that he, through some channels, saw those documents but could not
legally use them as evidence at the trial. "With no doubt they confirm
that Bosnian Serb political and army structures were under direct control by
the Serbian government, who also gave them financial and logistical
support," Softic said, though he was unable to give details from the
documents. Softic stressed that he did not blame ICTY prosecutors for not handing
over the documents, rather he blamed ICJ judges for not requesting them.
A source close to the Bosnian legal team told ISN Security Watch under
condition of anonymity that the most interesting part of those documents was
related to time of the Srebrenica massacre, dated from May to September of
1995. According to the source, those documents contain several orders from
Serbian army officials regarding military actions in Srebrenica.
"Among them are orders which confirm that Serbian military authorities
were placing, promoting and retiring Bosnian Serb officers, but also orders to
the Serbian officers to join the Republika Srpska Army [Bosnian Serb army], a
couple of months before the Srebrenica offensive," the source, who has
seen the original documents before they were blacked out, said. He said the
Supreme Defense Council held three meetings during the Srebrenica offensive,
unusually frequent, and that General Mladic was present at the third session.
The source also said that evidence would have made Serbia
liable for the Srebrenica genocide, and that whenever the agenda turned to
discussion of the financing of the Bosnian Serb army and personnel matters, as
well as to Croatian Serb activities, the documents were blacked out in places.
"For instance, the Serbian Supreme Defense Council decided in 1993 to
assist to officers of the Bosnian Serb Army by establishing a body within the
General Staff of the Yugoslav Army called the 30th Personnel Center," the
source said.
He also said that during the war in Bosnia,
up to 4,000 officers on the Yugoslav Army payroll were serving in the Bosnian
Serb Army within the 30th Personnel Center,
an office dealing with the officers serving in both armies for short temporary
assignments or longer indefinite periods. The source also said there were other
documents, besides those censored for the Milosevic trial, which could be used
for a revision of the case.
Bosnia's legal
team is hoping to gain new evidence from the trials against Serbian military
and intelligence officials, currently ongoing at the ICTY.
The ICTY is trying Momcilo Perisic, former Chief of the General Staff of the
Yugoslav Army, who is charged with the aiding, planning and execution of a
military campaign of artillery, mortar shelling and sniping on civilian areas
of Sarajevo. "These crimes
were, in part, planned, instigated, ordered, committed and aided by members of
30th Personnel Center [.] Perisic had reason to know that subordinates of his
serving in the Bosnian Serb Army via the 30th Personnel
Center had participated in the
perpetration of crimes in Sarajevo,"
reads the indictment.
Among the members of the 30th Personnel
Center are Bosnian Serb Army chief
General Ratko Mladic, General Stanislav Galic, commander of the Sarajevo
Romanija Corps, and his successor, General Dragomir Milosevic. General Galic
was sentenced in 2003 by the ICTY to 20 years for the shelling and sniping of Sarajevo;
General Milosevic surrendered to the ICTY in 2004 facing charges of crimes
against humanity and violations of the laws or customs of war; indicted General
Mladic is still at large, believed to be hiding somewhere in Serbia.
Perisic's indictment also says that crimes in Srebrenica were planned, ordered
and committed by members of the 30th Personnel
Center. Among other ongoing cases at
the ICTY that could provide new evidence in Bosnia's case against Serbia are
the trials of the former commander of the Special Forces of Serbian Interior
Ministry, Franko Simatovic; former chief of Serbian State Security Services
Jovica Stanisic; and Vojislav Seselj, former Serbian deputy prime minister and
leader of the Radical Party. Seselj is charged with founding the White Eagles
paramilitary unit, which committed atrocities in Croatia
and Bosnia.
Its own worst enemy
However, seeking a revision of the ICJ ruling could be a challenging task,
evidence aside, for Bosnia,
where ethnically divided nationalist politicians seldom reach agreement. The
greatest resistance comes from Bosnian Serb officials, who were against the
lawsuit from the beginning, though they are also dissatisfied with the ruling,
as it found Bosnian Serb wartime political and military leaders guilty of
genocide - a ruling that could have future implications. Bosnian Serb leaders
fear the ruling could lead to stepped up attempts to abolish Bosnia's
Serb-dominated entity, Republika Srpska.
Officials representing the international community are also against a revision
of the ruling, as is it not in the spirit of reconciliation. Even an attempt
last week by the Bosnian presidency to push through a resolution demanding that
Serbia arrest
and extradite indicted war criminals failed to pass when the Bosnian Serb
member of the presidency, Nebojsa Radmanovic, voted against it. Republika
Srpska parliament also rejected the resolution.
Some local media quoted sources from the Bosnian presidency as saying that the
international community had even interfered, attempting to convince the Bosniak
and Croat members of the presidency to "soften" the document to
"suggest" rather than "demand" that Serbia arrest indicted
war criminals.
A spokeswoman for the Croat member of the presidency, confirmed that there had
been meetings with international officials, but that there was no pressure to
change the resolution. "There were meetings on this subject with
representatives from United States
and several others western embassies in Sarajevo,
including High Representative of international community in Bosnia
and Herzegovina," the spokeswoman said.
In a press release from his cabinet, Radmanovic also suggested he would
"veto" any attempt by Bosnia
to seek a review of the ICJ judgment. However, Softic dismissed Radmanovic's
threat, saying that Radmanovic was legally powerless to stop a review of the
decision if new evidence were to emerge, and that an attempt to block the
revision would be viewed as a political rather than legal issue.
Bosnia has 10
years to start new proceedings at the ICJ if new evidence is discovered proving
that Serbia
intended to commit genocide in Bosnia.
However, if politics is allowed to take a front seat, chances for a review are
slim. (Editor's note: Anes Alic is a senior writer and analyst for ISN
Security Watch. He is based in Sarajevo.)
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