The collapse of Yugoslavia resulted in the Bosnian War. Two competing political and religious ideologies triggered the massive bloodshed and slaughter of thousands of young Muslims. The genocide case against Serbia was the first to be brought before the International Court of Justice under the genocide convention established by the United Nations after World War Two. It will be asserted in this paper that the successful prosecution of war crimes in the Bosnian case changed International law at a historical level. The new precedent set in the case sends a strong message to leaders of nations whose intent is to eradicate an entire population based on race, ethnicity, or religion.
The genocide case was unprecedented at the time because never before had an entire state been brought before the International Court of Justice on charges of genocide. Up until the Bosnian case, only groups of individuals were successfully prosecuted for genocide. The prosecutors in the Bosnian case had the daunting task of overcoming tremendous legal hurdles in the successful prosecution of Serbia, under the leadership of Slobodan Milosevic. This paper discusses the legal challenges faced by the prosecutors and their precedent setting victory in the case of genocide against Serbia (IWPR).
The war in Bosnia occurred between March 1992 and November 1995. There were different factions in Bosnia that attempted to define that country’s population. The main factions involved in the conflict were the Republic of Bosnia and Herzegovina, Herzig-Bosnia (Croats), and the Republika Srpska (Serbs). The groups were ideologically separated by religion, language, and political philosophy (East European Quarterly).
Most scholars agree that the main impetus for the war in Bosnia was the dissolution of Yugoslavia. At the end of the Cold War, the country of Yugoslavia’s national party, The League of Communists of Yugoslavia, was losing its control. Communism was quickly falling out of fashion. New ideologies began to take root in the last years of the 1980s. After the death of President Josip Tito in 1980, the Federal system crumbled (East European Quarterly).
Prior to being absorbed into Yugoslavia, Bosnia and Herzegovina, Croatia, and Serbia had been independent, state entities. Once the Ottomans conquered each of these independent states, conversion to Islam was extensive in Bosnia. The other two, newly conquered states maintained their Christian, religious identities. When the three states were combined and named, Yugoslavia in 1929, Bosnian Catholics (Croats) and Bosnian Orthodox Christians (Serbs) did not recognize the Bosnian Muslim identity as legitimate (Tabeau).
Finally, in 1968, the Bosnian Muslims were allowed to register as Muslims rather than Bosnian citizens. This created a lack of identity in the Muslim population of Bosnia. During this time, the Serbs dominated the government of Yugoslavia. It was also during this monarchial time that the successor to President Tito attempted to eliminate the two independent states of Kosovo and Vojvodina in order to take over their seats in the Presidential Council (East European Quarterly).
On January 20, 1990, at a meeting of the 14th Extraordinary Congress of the League of Communists of Yugoslavia, the delegation could not come to an agreement on how to govern the Yugoslavia Federation. As a result, the Croatian and Slovenian delegates removed themselves from the Congress. Milan Kucan, head of the Slovenian delegation, demanded less government control and a more democratic form of governance (East European Quarterly).
The head of the Serbian delegation, Slobodian Milosevic was opposed to this philosophy. This was the beginning of the unraveling of Yugoslavia. Milosevic was able to take over because Serbia’s block votes went to the Presidency of Croatia. Milosevic benefited from this and continued to remain in the office of the Presidency of Serbia. Slovenia and Croatia declared their independence from Yugoslavia on June 25, 1991 (Eastern European Quarterly).
As a result, the Croatian Democratic Union gained power in Croatia, led by Franjo Tudman. Serbia attacked Slovenia; however, the attack was unsuccessful. Serbia’s reason for the attack was to perpetuate the nation of Yugoslavia. However, this soon escalated into an all-out war between Croatia and Serbian until 1995 (IWPR). During this war, horrible atrocities, including genocide took place. After the war, the legal implications for those involved in perpetuating the genocide were under review, and those involved were brought to trial before the courts.
A genocide case was launched against Serbia (and Montenegro), by Bosnian lawyers, at the International Court of Justice or ICJ. This was the first time in history that an entire state (Serbia) was brought before the International Court of Justice for war crimes. The move was unprecedented. Despite of precedent, proceedings were set for February, 27th of 2007 (IWPR).
The prosecutors, in collaboration with prosecutors from the International Criminal Tribunal for the Former Yugoslavia, were able to establish that thousands of Muslim young men and boys were slaughtered in Srebrenica by Serb troops in 1995 (IWPR). This, according to the prosecutors, constituted the crime of genocide. They had compiled two years’ worth of evidence against Slobodan Milosevic. Milosevic was the former President of Yugoslavia. The evidence gathered was enough to convince the judges on the International Court of Justice to hear the genocide case.
The Bosnian prosecutors had the daunting task of proving to the International Court of Justice that the crime of genocide took place in Bosnia. The judges had already agreed to hear the case regarding the charge of genocide. However, since a charge of genocide had only been brought against a group of individuals, and not a state, the prosecutors had to prove that genocide was carried out by virtue of an order issued by the former President of Yugoslavia, Milosevic (Blumenstock).
Proving the crime of genocide also presents a number of legal implications. The main component in successfully prosecuting a genocide case is proving intent. In other words, it must be proven that a set of individuals had a particular mindset to harm a group of individuals or an entire population (IWPR). The prosecutors in the Bosnia genocide case had to prove that the entire state of Serbia, under Slobodan Milosevic had a national mindset to destroy an entire population (Tabeau).
The crime of genocide was believed to have been perpetrated through covert military channels. Therefore, the government was not “officially” aware of the actions that its own military was undertaking. This tremendously increased the pressure on the prosecutors in the Bosnia case. Additionally, the International Court of Justice had never been involved in such a complex case. The International Court of Justice usually served as an arbitrator for disputes over maritime and border disputes (IWPR).
Another issue facing the prosecution of the crime of genocide was whether or not the ICJ had the jurisdiction to hear the case. In fact, the defense team, in June 1995, argued that the Court did not have the jurisdiction to hear the case. The Belgrade team argued that Yugoslavia had no influence in Bosnia, and that the genocide convention did not include Bosnia. They asserted that even if Bosnia was part of the convention, it could not be held responsible for the crime because its accession occurred afterwards. In other words, Bosnia could not be the basis of the case (IWPR).
The case against Serbia and Montenegro was the first case brought before the International Court of Justice based on the genocide convention of the United Nations. The convention was implemented after World War Two and has been part of International law since that time. The United Nations defines genocide as acts that are committed for the purposes of eradicating a group of individuals or an entire population based on religion, race, nationality, or ethnicity (Blumenstock).
The International Court of Justice came to the correct conclusion in the Bosnian case of genocide. It is incomprehensible to think that the slaughter of thousands of young Muslims could go unpunished. The most important lesson that can be taken away from the genocide case is that a leader of a nation cannot hide behind paramilitary, covert actions of his or her military in order to circumvent the law. The decision in the genocide case sends a clear message to current and future dictators of regimes that mass murder at the hands of an oppressive state will not be tolerated.
BLUMENSTOCK, TILMAN. “Legal Protection of the Missing and their Relatives: The Example of Bosnia and Herzegovina.” Leiden Journal of International Law 19.3 (2006): 773-93. ABI/INFORM Complete. 26 Jan. 2012 <http://search.proquest.com/docview/219584229?accountid=45844
IWPR. “Serbia and Montenegro on Trial for Genocide.” March 2006. Institute for War and Peace Reporting. 27 January 2012 <http://iwpr.net/report-news/serbia-and-montenegro-trial-genocide>.
Tabeau, Ewa, and Jakub Bijak. “War-Related Deaths in the 1992-1995 Armed Conflicts in Bosnia and Herzegovina: A Critique of Previous Estimates and Recent Results.” European Journal of Population 21.2-3 (2005): 187-215. ABI/INFORM Complete. 26 Jan. 2012 <http://search.proquest.com/docview/222589274?accountid=45844
“The War Against Bosnia-Herzegovina.” East European Quarterly 33.2 (1999): 219-32. ABI/INFORM Complete. 26 Jan. 2012 <http://search.proquest.com/docview/195174076?accountid=45844