Bosnia vs Serbia: The evidence scandal
Accusations and denials abound about censored evidence that could have helped Bosnia's case against Serbia at the International Court of Justice, as a divided Bosnia considers a review of the ruling.
By Anes Alic in Sarajevo for ISN Security Watch (24/04/07)
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.
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."
Sakib Softic, Bosnia's legal representative, told ISN Security Watch that evidence mentioned by Nice could help prove the involvement of Serbian authorities in the Bosnian war. He pointed out that even the ICJ's vice president, Jordanian judge Awn Shawkat Al-Khasawneh, had suggested the genocide ruling was based on incomplete evidence.
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.
"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," he told ISN Security Watch.
"Without a 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," the source said.
"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.
Anes Alic is a senior writer and analyst for ISN Security Watch. He is based in Sarajevo.(Originally posted at http://www.isn.ethz.ch/news/sw/details.cfm?ID=17528)