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TRIBINA BOŠNJAKA
 

 

 

 

 

 

"TRYING TO STOP AGGRESSIVE WAR AND GENOCIDE AGAINST

THE PEOPLE AND THE REPUBLIC OF BOSNIA AND HERZEGOVINA*

                          by

Francis A. Boyle

         Professor of International Law

         4 April 1997

There are numerous accounts of the aggression and genocide perpetrated by the rump Yugoslavia and its Bosnian Serb surrogates against the People and the Republic of Bosnia and Herzegovina that have been written by journalists, historians, ambassadors, political scientists, and others.  This paper tries to tell the story of Bosnia from the perspective of international law.  The aggression and genocide against Bosnia and the refusal of the international community to stop it will prove to be one of the pivotal events of the post World War II era.  This paper will try to explain what happened, why it happened, and, most importantly, what was wrong with what happened.

It is hoped that this analysis will prove useful to the People of Bosnia and Herzegovina as they struggle to reconstruct their lives and their State.  Hopefully, a record of what happened in the past will provide the Bosnian People with a guide for the direction of their future.  Concerning the utility of this study for the rest of the world, as George Santayana has said: "Those who cannot remember the past are condemned to repeat it.,,

On March 19, 1993, this author was appointed General Agent with Extraordinary and Plenipotentiary Powers "to institute, conduct and defend against any and all legal proceedings" for the Republic of Bosnia and Herzegovina before the International Court of Justice by His Excellency President Alija Izedbegovic while attending the so-called Vance-Owen negotiations in New York.1 The very next day the author instituted legal proceedings on behalf of the Republic of Bosnia and Herzegovina before the International Court of Justice in The Hague against the rump Yugoslavia for violating the 1948 Genocide Convention.  On April 8, 1993, the author won an Order for provisional measures of protection from the World Court against the rump Yugoslavia that was overwhelmingly in favor of Bosnia and Herzegovina.

Generally put, the World Court ordered the rump Yugoslavia immediately to cease and desist from committing all acts of genocide in the Republic of Bosnia and Herzegovina, whether directly or indirectly by means of its surrogate Bosnian Serb military, paramilitary, and irregular armed units:

52. For these reasons,

The COURT,

Indicates, pending its final decision in the proceedings instituted on 20 March 1993 by the Republic of Bosnia and Herzegovina against the Federal Republic of Yugoslavia (Serbia and Montenegro), the following provisional measures: 

A.        (1) Unanimously,  

The Government of the Federal Republic of Yugoslavia (Serbia and Montenegro) should immediately, in pursuance of its undertaking in the Convention on the Prevention and Punishment of the Crime of Genocide of 9 December 1948, take all measures within its power to prevent commission of the crime of genocide;

  (2)            By 13 votes to 1,  

The Government of the Federal Republic of Yugoslavia (Serbia and Montenegro) should in particular ensure that any military, paramilitary or irregular armed units which may be directed or supported by it, as well as any organizations and persons which may be subject to its control, direction or @nfluence, do not commit any acts of genocide, of conspiracy to commit genocide, of direct and public incitement to commit genocide, or of complicity in genocide, whether directed against the Muslim population of Bosnia and Herzegovina or against any other national, ethnical, racial or religious group;

 

IN FAVOUR: President Sir Robert Jennings; Vice-President Oda; Judges Ago, Schwebel, Dedjaoui, Ni, Evensen, Guillaume, Shahabuddeen, Aguilar Mawdsley, Weeramantry, Ranjeva, Ajibola;  

AGAINST:            Judge Tarassov;  

B.            Unanimously,  

The Government of the Federal Republic of Yugoslavia (Serbia and Montenegro) and the Government of the Republic of Bosnia and Herzegovina should not take any action and should ensure that no action is taken which may aggravate or extend the existing dispute over the prevention or punishment of the crime of genocide, or render it more difficult of solution.  

In his Declaration attached to the World Court's Order of 8 April 1993, the late Judge Tarassov from Russia provided a most authoritative interpretation of Paragraph 52A(2) of the Court's Order:

... In my view, these passages of the Order are open to the interpretation that the Court believes that the Government of the Federal Republic of Yugoslavia is indeed involved in such genocidal acts, or at least that it may very well be so involved.  Thus, on my view, these provisions are very close to a pre-judgment of the merits, despite the Court's recognition that, in an Order indicating provisional measures, it is not entitled to reach determinations of fact or law....  

As I told the world's news media from the floor of the Great Courtroom of the Peace Palace in The Hague immediately after the close of the World Court's proceedings wherein this Order was handed down, I fully agreed with Judge Tarassov in the following sense: This Order was indeed a pre-judgment on the merits that genocide had been inflicted by the rump Yugoslavia against the People and the Republic of Bosnia and Herzegovina, both directly and indirectly by means of its surrogates in the Bosnian Serb military, paramilitary, and irregular armed units.

The unanimous ruling in Paragraph 52A(l) indicated that the World Court believed there was more than enough evidence to conclude that the rump Yugoslavia itself had inflicted genocide against the People and the Republic of Bosnia and Herzegovina.  The 13 to 1 ruling in Paragraph 52A(2) indicated that the World Court believed there was more than enough evidence to conclude that the rump Yugoslavia was legally responsible for the atrocities inflicted by the Bosnian Serb military, paramilitary, and irregular armed forces against the People and the Republic of Bosnia and Herzegovina.  The 13 to 1 ruling in Paragraph 52A(2) also indicated that the World Court believed that there was more than enough evidence to conclude that these surrogate Bosnian Serb military, paramilitary, and irregular armed forces had inflicted acts of genocide, conspiracy to commit genocide, direct and public incitement to commit genocide, and complicity in genocide, against the People and the Republic of Bosnia and Herzegovina.  

As the Lawyer for the entire Republic of Bosnia and Herzegovina and for all of its People, I had expressly asked the World Court to protect all of the national, ethnical, racial and religious groups in Bosnia from acts of genocide perpetrated by the rump Yugoslavia and by its surrogate Bosnian Serb military, paramilitary, and irregular armed forces, which the World Court did do in Paragraph 52A(2) of this Order.  Of course, the first and foremost victims of this genocide were the Bosnian Muslims, but also came those Bosnian Croats, those Bosnian Serbs and those Bosnian Jews who supported the Republic of Bosnia and Herzegovina.  However, most of the evidence of genocide that I submitted to the World Court concerned acts of genocide against Bosnials Muslim population, to which the Bosnian Parliament awarded the name "Bosniaks.11 So the World Court went out of its way to protect by name "the Muslim population of Bosnia and Herzegovina" from acts of genocide by the surrogate Bosnian Serb military, paramilitary, and irregular armed forces in Paragraph 52A(2) of this 8 April 1993 Order.

Only the late Judge Tarassov from Russia objected to this express protection of Bosnian Muslims by name in his separate Declaration: "The lack of balance in these provisions is the clearer in view of the way in which the Court has singled out one element of the population of Bosnia and Herzegovina.,, Once again, I agree with Judge Tarassov in the sense that the overwhelming weight of the evidence did indeed call for the World Court to protect the Bosnian Muslims from genocide expressly by name.  This entire World Court Order of 8 April 1993 was so completely unbalanced against the rump Yugoslavia and its surrogate Bosnian Serb military, paramilitary, and irregular armed forces because the evidence of their genocide against the People and the Republic of Bosnia and Herzegovina and, in particular, against the Bosnian Muslims, was so overwhelming.

The unanimous World Court ruling in Paragraph 52B was also a victory for the People and the Republic of Bosnia and Herzegovina.  I had expressly asked the World Court to impose this protective measure upon both Bosnia and the rump Yugoslavia-, which the Court did indeed do.  My calculation was that the rump Yugoslavia would definitely violate this measure, whereas Bosnia would obey it.  I felt it would be difficult to imagine how the victim of genocide could aggravate or extend the dispute over genocide with the perpetrator of genocide, or render that dispute more difficult of solution.

By voluntarily asking for the imposition of this measure upon both Bosnia and the rump Yugoslavia, I intended to entangle the rump Yugoslavia into a full-scale breach and open defiance of the most comprehensive World Court Order that I could obtain.  This is exactly what happened.  The rump Yugoslavia paid absolutely no attention whatsoever to the entirety of this 8 April 1993 Order.  Whereas, by comparison, Bosnia obeyed this self-imposed requirement of Paragraph 52B not to aggravate or extend the dispute over genocide, or render it more difficult of a solution.

By means of obtaining the measure set forth in Paragraph 52B, inter alia, I intended to prepare the groundwork for harsher Security Council sanctions against the rump Yugoslavia.  I also hoped to pave the way for a then already anticipated second round of provisional measures at the World Court in which I intended to  expand the basis of my original Application/complaint against the rump Yugoslavia beyond the fixed parameters of the 1948 Genocide Convention.  I needed to do that in order to break the genocidal arms embargo against Bosnia and also to stop the proposed racist carve-up of the Republic pursuant to the so-called Vance-Owen Plan, and then later, its successor, the genocidal Owen­Stoltenberg Plan.

By issuing this Order on 8 April 1993 the World Court necessarily and overwhelmingly rejected the bald-faced lies put forward by the rump Yugoslavials Lawyer Shabtai Rosenne from Israel, that the bloodshed in Bosnia was the result of a civil war for which the rump Yugoslavia was in no way responsible.  The World Court also overwhelmingly rejected Rosenne's argument that President Izetbegovic was not the lawful President of the Republic and therefore could not lawfully institute this lawsuit against the rump Yugoslavia and appoint me as Bosnials Lawyer to argue this genocide case before the World Court.  The World Court also overwhelmingly rejected Rosenne's request that provisional measures along the lines of those found in Paragraphs 52A(l) and (2) be imposed upon Bosnia because there was no evidence that the Government of the Republic of Bosnia and Herzegovina had committed genocide against anyone.  Many of these so-called issues are still misrepresented by the rump Yugoslavia and its supporters around the world today despite the fact that they were decisively resolved by the World Court as long ago as 8 April 1993.

The World Court's Order of 8 April 1993 was an overwhelming and crushing defeat of the rump Yugoslavia by Bosnia on all counts save one: The World Court said nothing at all about the arms embargo, apparently because the Genocide Convention itself says nothing at all about the use of force to prevent genocide.  Nevertheless, in this regard, the World Court did state quite clearly in Paragraph 45 of its 8 April 1993 Order that in accordance with the requirements of Article I of the Genocide Convention 11 ... all parties to the Convention have thus undertaken 'to prevent and to punish, the crime of genocide ... 11 The implication was quite clear that in the opinion of the World Court all 100+ states that were parties to the Genocide Convention had an absolute obligation "to prevent" the ongoing genocide against Bosnia.  Therefore, although technically the World Court directed its 8 April 1993 Order against the rump Yugoslavia, the Court was telling every other state in the world community that each had an obligation "to prevent" the ongoing genocide against the People and the Republic of Bosnia and Herzegovina.

The World Court continued in Paragraph 45 with the following language: 11 ... whereas in the view of the Court, in the circumstances brought to its attention and outlined above in which there is a grave risk of acts of genocide being committed... 11 (Emphasis added.) In other words, the World Court went as far as it could consistent with its Rules of Procedure toward definitively ruling that acts of genocide were actually being committed by the rump Yugoslavia and its surrogate Bosnian Serb armed forces against the People and the Republic of Bosnia and Herzegovina.  At the time, this "grave risk of acts of genocide,, language set forth in Paragraph 45 of the 8 April 1993 Order was as close as the World Court could go to rendering a pre-judgment on the merits of the dispute, as pointed out by the late Judge Tarassov in his Declaration.

Several hours after I had won this World Court Order for Bosnia, on 8 April 1993 the Clinton administration announced the imposition by NATO of a complete air interdiction zone above the Republic of Bosnia and Herzegovina whereby NATO'jet fighters would shoot down any Serb jets, planes, and helicopters.  The Serbs were no longer able to kill the Bosnians from the sky!  Late that evening Hague time I was interviewed live by the BBC and asked to give my opinion on this so-called "no-fly zone,, over Bosnia that was announced earlier in the day from Washington, D.C.: if... I certainly hope that the NATO pilots do not fly over Bosnia, watch the genocide, rape, murder, torture and killing go on, take pictures, send them back to NATO Headquarters, Washington, London and Paris, and then do nothing to stop it!" Yet, most tragically of all, that is exactly what happened until the Fall of 1995.

In accordance with its own terms, an original copy of this 8 April 1993 Order was transmitted "to the Secretary-General of the United Nations for transmission to the Security Council." In other words, the World Court officially informed the member states of the U.N. Security Council (1) that genocide was currently being inflicted by the rump Yugoslavia and its surrogate Bosnian Serb armed forces against the People and the Republic of Bosnia and Herzegovina; and also (2) that the member states of the Security Council had an absolute obligation under the Genocide Convention "to prevent" this ongoing genocide against Bosnia.  According to Article 94(2) of the United Nations Charter, the Security Council is supposed to enforce such World Court Orders.

As I had anticipated, the rump Yugoslavia paid absolutely no attention whatsoever to the World Court's 8 April 1993 Order, and immediately proceeded to violate each and every one of its three provisional measures.  But instead of punishing the rump Yugoslavia, the Security Councills Permanent Members -- the United States, Britain, France, Russia, and China -- decided to punish Bosnia, the victim, by imposing upon it the so-called Owen­Stoltenberg Plan as the successor to the Vance-Owen Plan, which had been rejected by the so-called Bosnian Serb Parliament.  The Owen-Stoltenberg Plan would have carved-up the Republic of Bosnia and Herzegovina into three ethnically based mini-states, destroyed Bosnials Statehood, and robbed Bosnia of its Membership in the United Nations Organization.  Furthermore, in accordance with an internal study prepared by the United States Department of State, this proposed tripartite partition of Bosnia would have subjected approximately 1.5 to 2 million more Bosnians to "ethnic cleansing," which I had already argued to the World Court was a form of genocide.

Therefore, soon after my return from The Hague, the author set out to break the genocidal arms embargo against Bosnia and to stop this genocidal carve-up of the Republic of Bosnia and Herzegovina by drafting a Second Request for Provisional Measures of Protection to the International Court of Justice on behalf of Bosnia.  Pursuant thereto, on July 26, 1993, the author spent the day at United Nations Headquarters in New York with Ambassador Muhamed Sacirbey of the Republic of Bosnia and Herzegovina, publicly briefing large numbers of Ambassadors, as well as privately briefing the Non-Aligned member states of the Security Council and the then President of the Council Ambassador Diego Arias from Venezuela, about this Second Request to the International Court of Justice for an Interim Order of Protection on behalf of the Republic of Bosnia and Herzegovina.  In that location and on that day, as Bosnials Lawyer I publicly threatened to sue the Permanent Members of the Security Council over the arms embargo, with Ambassador Sacirbey sitting at my side.  As I said at that time and place, the Security Councills arms embargo against the Republic of Bosnia and Herzegovina had aided and abetted genocide against the Bosnian People.

The five Permanent Members of the Security Council--United States, United Kingdom, Russia, France, China--bear special responsibility for aiding and abetting genocide against the People and the Republic of Bosnia and Herzegovina in violation of the 1948 Genocide Convention.  I would have been happy to have sued the Permanent Members of the Security Council for Bosnia, and had offered to do so on more than one occasion to the Bosnian Presidency.  The same condemnation can be applied as well to all those U.N. member states that had served on the Security Council from 1992 through 1995 and had routinely supported the continuation of this genocidal arms embargo against Bosnia.

That evening, the author flew to The Hague and filed this Second Request for Interim Protection at the World Court on 27 July 1993.  The very next day, 28 July 1993, the author flew to  Geneva in order to serve as the Legal Adviser to President Alija Izetbegovic, then Foreign Minister (later Prime Minister) Haris Silajdic, and all of the Members of the collective Presidency of the Republic of Bosnia and Herzegovina during the so-called Owen­Stoltenberg negotiations.  There I personally disrupted the Owen­Stoltenberg Plan to carve-up the Republic into three pieces, to destroy Bosnials Statehood, and to rob Bosnia of its Membership in the United Nations Organization.  In addition, President Izetbegovic had also instructed me to negotiate in good faith over the so-called "package,, of proposed documents with David Owen and his lawyer Paul Szasz.  The author served in that capacity until August 10, 1993, when the talks had broken down.  The author then returned home in order to prepare for Bosnials second oral argument before the World Court.

              The author then argued the Second Request for provisional measures of protection forBosnia and Herzegovina before the World Court on 25 and 26 August 1993.  The author then won the Second Order of  Provisional Protection on behalf of Bosnia from the World Court on 13 September 1993. Generally put, this second World Court Order demanded that the Court's first Order of 8 April 1993 "should be immediately and effectively implemented":  

61.            For these reasons,  

THE            COURT  

(1)            By 13 votes to 2,  

Reaffirms the provisional measure indicated in paragraph 52 A (1) of the Order made by the Court on 8 April 1993, which should be immediately and effectively implemented;  

IN FAVOUR: President Sir Robert Jennings; Vice-President Oda; LTudges Schwebel, Bedjaoui, Ni, Evensen, Guillaume, Shahabuddeen, Aguilar Mawdsley, Weeramantry, Ajibola, Herczegh; Judge ad hoc Lauterpacht;

  AGAINST:            Judge Tarassov; Judge ad hoc Kreca;  

(2) By 13 votes to 2,  

Reaffirms the provisional measure indicated in paragraph 52 A (2) of the Order made by the Court on 8 April 1993, which should be immediately and effectively implemented;  

IN FAVOUR: President Sir Robert Jennings; Vice-President Oda; LTudges Schwebel, Bedjaoui, Ni, Evensen, Guillaume, Shahabuddeen, Aguilar Mawdsley, Weeramantry, Ajibola, Herczegh; Judge ad hoc Lauterpacht; 

AGAINST:            Judge Tarassov; Judge ad hoc Kreca;  

(3)          By 14 votes to 1,  

Reaffirms the provisional measure indicated in paragraph 52 B of the Order made by the Court on 8 April 1993, which should be immediately and effectively implemented. 

IN FAVOUR: President Sir Robert Jennings; Vice-President Oda; Judges Schwebel, Bedjaoui, Ni, Evensen, Tarassov, Guillaume, Shahabuddeen, Aguilar Mawdsley, Weeramahtry, Ajibola, Herczegh; Judge ad hoc Lauterpacht;  

AGAINST: Judge ad hoc Kreca.

In his Dissenting Opinion attached to this second World Court Order of 13 September 1993, the late Judge Tarassov from Russia once again provided a most authoritative interpretation of its meaning and significance: 

Given that requests for the indication of provisional measures have been submitted by both Parties in new proceedings and given the numerous communications on which those requests are based, regarding acts which allegedly relate to the crime of genocide and which have purportedly been committed in this inter-ethnic, civil conflict in Bosnia and Herzegovina by all ethnic groups against each other, the Court's decision to make an order ascribing the lion's share of responsibility for the prevention of acts of genocide in Bosnia and Herzegovina to Yugoslavia is a one-sided approach based on preconceived ideas, which borders on a pre-judgment of the merits of the case and implies an unequal treatment of the different ethnic groups in Bosnia and Herzegovina who have all suffered inexpressibly in this fratricidal war.  I, as a judge, cannot support this approach. 

... While the one-sided, unbalanced order of the Court might not necessarily be an obstacle to a negotiated settlement,' it will obviously not facilitate its successful completion. 

Once again, I fully agreed with the late Judge Tarassov's characterization of this second World Court Order of 13 September 1993 in the following sense:

It was indeed completely "one-sided" and "unbalanced" in favor of Bosnia and against the rump Yugoslavia and its surrogate Bosnian Serb armed forces.  This second World Court Order clearly did ascribe "the lion's share of responsibility" for the atrocities in Bosnia to the rump Yugoslavia and its surrogate Bosnian Serb military, paramilitary, and irregular armed forces.  This second Order clearly represented a "one-sided approach" by the World Court in favor of Bosnia against the rump Yugoslavia and its surrogate Bosnian Serb armed forces.  Moreover, this second Order clearly accorded the Bosnian Muslims "unequal treatment" because of the Order's reaffirmation of their express protection by name.  The World Court had indeed developed the "preconceived ideas" that the Bosnian Muslims were the primary victims of Serb genocide against the People and the Republic of Bosnia and Herzegovina precisely because of the overwhelming evidence I had submitted to that effect starting on 20 March 1993 when I originally filed the lawsuit.  Finally, this second World Court Order of 13 September 1993 was even more of "a pre-judgment on the merits of the case" than was the first Order of 8 April 1993.

Immediately after the receipt of this second World Court Order, the Serb Ambassador sat down dejectedly in the Hall of the Peace Palace just outside the Great Courtroom and was asked by the world news media what he thought about the new (5rder: "It is even worse than the first one!" The world news media then asked me what I thought about his comment: "It is the first truthful statement they have ever made here at the World Court." You have to give the devil his due when he is telling the truth.

In order to render this second order, the World Court once again necessarily and overwhelmingly rejected the bald-faced lies put forward by Rosenne and in addition now by three Serb lawyers who had joined him, that what was happening in Bosnia was a civil war for which the rump Yugoslavia bore no responsibility.  Once again, the World Court overwhelmingly rejected Rosenne's argument that President Izetbegovic was not the legitimate President of the Republic of Bosnia and Herzegovina entitled to have me argue these proceedings before the World Court in his name and in the name of the Republic.  Finally, the World Court once again overwhelmingly rejected the request by Rosenne to impose a proposed provisional measure against Bosnia along the lines of Paragraph 52A(l) of its 8 April 1993 Order because there was still no evidence that the Republic of Bosnia and Herzegovina had committed genocide against anyone.

 

NASTAVIĆE SE........