The failure of the International Court of Justice to effectively enforce the Genocide Convention.

AuthorDeWeese, Geoffrey S.

"Things fall apart; the centre cannot hold; Mere anarchy is loosed upon the world, The blood-dimmed tide is loosed, and everywhere The ceremony of innocence is drowned" The Second Coming - William Butler Yeats

PREFACE

The collapse of the UN safe-area of Srebrenica took place over the course of a few days in July of 1995. Starting with shelling on July 6,(1) the Serbs who surrounded the town began to indicate an intent to break a long stalemate. By July 10 they had control of the southern portion of the enclave right up to the town's edge.(2) On July 11 the town was abandoned by both the Muslim inhabitants and the Dutch Peacekeepers assigned to protect it; the safe-area ceased to exist.(3)

What occurred over the next few days is hard to accept, but there is no hiding from it. The town split up into two groups. Most of the women, children and elderly walked the two miles up to the Dutch headquarters in Potocari, on the northern edge of the safe-area.(4) Some 10,000 to 15,000 others, mostly men and boys, both civilians and soldiers, started off in a long column through the mountains and woods of western Bosnia in hopes of making it to Muslim controlled Tuzla.(5)

In Potocari on July 12, the Serbs, led by General Ratko Mladic, began a process of loading the refugees on buses and trucks for transportation to Muslim controlled Bosnia.(6) However, they herded out most of the men and held them separately.(7) Meanwhile the men trudging their way through the hillsides came under attack, and soon the long line was spread out and in disarray.(8)

On Friday, July 14, two men found themselves crowded into the same gymnasium.(9) Mevludin Oric had been part of the march to Tuzla, but, like so many he had been captured along with his cousin Haris.(10) Hurem Suljic had been one of the old men pulled away from his family in Potocari on July 12 as the Serbs "evacuated" Srebrenica's civilian Muslim population to eastern Bosnia.(11) Now they were both held prisoner along with some 1,000 to 1,500 other men.(12) That afternoon General Mladic arrived and conferred with the other Bosnian Serb officers, laughing and smiling.(13)

Shortly after Mladic left, the Serbs began to herd the prisoners into a smaller room in groups of fifteen to twenty; within half an hour Oric and his cousin were part of one such small group to be taken.(14) They were blindfolded and put in the back of trucks.(15) After a short ride they were pulled out of the truck; moments later shots began to ring out.(16)

About five hours later Suljic was taken out of the same gym, blindfolded and put in the back of a truck.(17) As it drove away, Suljic peeked out from under his blindfolded and was surprised to find that he, at fifty-five, was the youngest man in the truck.(18) Looking out the back of the truck he saw the horrific sight of hundreds of dead bodies laying in rows with a bulldozer busy digging a mass grave.(19) Taken out of the truck, the men were herded to the end of a row of bodies, and the Serbs began to shoot.(20)

Somehow neither Oric and Suljic were hit, and by playing dead amongst the other victims they survived until nightfall when they found each other and escaped.(21) Oric's cousin, who's dead body lay across his legs all day, and hundreds of others did not survive.(22)

The story of Mevludin Oric and Hurem Suljic is not the only one which survives the war in Bosnia. What happened to them and those with them is typical of the genocide that occurred. According to the Red Cross, 7,364 people are still missing from Srebrenica alone, with 19,323 listed as missing from the entire war.(23) To put this into perspective, after the ten year Vietnam war period, which involved over two million Americans, there were only 2,097 missing.(24)

  1. INTRODUCTION

    Three years before the fall of Srebrenica, on March 6, 1992, President Alija Izetbegovic declared independence for the Republic of Bosnia and Herzegovina following a national referendum.(25) Exactly one month later, as war was breaking out in the former Yugoslav republic, the European Community extended the Republic of Bosnia and Herzegovnia recognition as an independent nation.(26) The next day, April 7, Bosnian Serbs anounced their formation of a separate "Serbian Republic of Bosnia and Herzegovina."(27)

    Less than a year later, on March 20, 1993, Bosnia and Herzegovina ("Bosnia")(28) filed a complaint with the Registry of the International Court of Justice (ICJ) instituting proceedings against the Federal Republic of Yugoslavia (Serbia and Montenegro) ("Yugoslavia") alleging violations of the Convention on the Prevention and Punishment of the Crime of Genocide.(29)

    The ICJ has yet to reach the merits of the case. Over the course of the past five years the ICJ has ruled on issues in three main categories: the indications of provisional measures,(30) preliminary objections to the Application and to the ICJ's jurisdiction to hear the case,(31) and the permissibility of counter-claims.(32) It was while the ICJ was dealing with these procedural issues that Srebrenica was overrun by Bosnian Serbs, leading to the disappearance and suspected mass murders of so many Bosnian Muslims.(33) As the case continued to drag on in The Hague, the war in Bosnia was brought to an uneasy end under the Dayton-Paris Peace Treaty and UN Peacekeepers were replaced by NATO forces.(34)

    The Bosnian war and the case it spawned before the ICJ serve as a reminder that violence in the form of genocide and warfare cannot be stopped in the courtroom. Perhaps the ICJ is not the place to settle disputes over issues as pressing as genocide. The procedures of the Court, and the lack of enforceability of its judgments outside of the actions of the U.N. and good will of the nations who are parties to it, do not meet the need for swift action when the issue is not only the placing of blame for acts of genocide, but the prevention of such ongoing acts. The Convention refers to both Prevention and Punishment, but while the ICJ ponders who should be punished, it has been utterly ineffective in the more immediate and more important work of preventing genocide.

    To keep the Court's deliberations in perspective, I will spend a portion of this paper reviewing the social and political history of the Balkans and of the war that erupted there as the former communist state of Yugoslavia disintegrated. I begin by reviewing the history of the region up to the collapse of communist Yugoslavia. With this foundation, I will then present the holdings that have characterized the three phases of the litigation before the ICJ so far, along with some of the commentary from various judges. Next, I will review the events that were taking place in Bosnia while the case was being drawn out. I will conclude then with some personal observations and questions which I feel arise from both the case itself and its impact (or lack thereof) on the people of Bosnia.

  2. HISTORY TO 1992

    Prior to its acceptance by the world community as an independent state in 1992, there had never been an independent state of Bosnia.(35) Settled in the seventh century by Slavic peoples, the area in which Bosnia now rests was at the conflux of various world powers over the centuries.(36) To the west lay the Roman Catholic Church which was followed by the Croats, and to the east the Orthodox Church was preeminent and supported by the Serbs.(37) In the fifteenth century the conquest of Bosnia and the surrounding region by the Ottoman Empire brought Islam into this mix of religious ideals, and many people, both peasants and nobles, converted as a means of keeping their land.(38)

    Bosnia was becoming a focal point for international tension as the Christian nations in Europe came to feel threatened by such a large and strong Islamic state in Europe itself. In 1875 Slavs in Serbia and Montenegro intervened in an uprising in Bosnia and soon rebellion had spread throughout the region.(39) Sensing an opportunity to weaken its Ottoman enemy and gain valuable territory, Russia stepped in to support its Slavic neighbors.(40) In March of 1878 the Treaty of San Stefano gave the Russian Empire a triumphal victory and freed the Slavic states from Ottoman rule.(41)

    The new borders laid out at San Stefano, however, didn't last very long as the rest of Europe became concerned with Russian expansion. In June and July of 1878 the lines were once again redrawn and territory redistributed by the Congress of Berlin.(42) As part of the new structure, Bosnia and Herzegovina was given to the Austro-Hungarian Empire to administer.(43) While these new developments disappointed Russia, they angered Serbia and Montenegro and the Balkans continued to be a source of contention among the European powers.(44)

    Within the Balkans, religion may have divided the people, but they were all of Slavic ancestry and spoke variations of the same language,(45) These peoples had found themselves ruled by various nations over the centuries - Turkey, Austria, Hungary, and Russia.(46) There was a growing movement of Slavic nationalism at the start of the twentieth century aimed at a union of the South Slavs (Yugoslavs) into an independent nation.(47) Serbia hoped to be the state that would unite these disparate peoples.(48)

    In 1908 Turkey began to regain some of its strength which led to the official annexing of Bosnia by Austria.(49) This angered the Serbs who had hoped to create a greater Yugoslav state, and it also antagonized Russia.(50) However, Germany, Austria's partner in the Dual Alliance, tacitly supported the move.(51) In the ensuing years two small wars broke out in the Balkans and the various alliance that held Europe to a fragile stability began to strain under the pressure.(52) Finally the assassination of Austrian Archduke Ferdinand, heir to the throne, in Sarajevo in 1914 by a Bosnian Serb nationalist proved to be too much and like dominoes the various European powers fell victim to their own alliances and one by one were drawn...

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