Bosnian Genocide - Controversy

Controversy

While the majority of international opinion accepts the findings of the international courts, there remains some disagreement about the extent of the genocide and to what degree Serbia was involved (note: the involvement of the breakaway republic of Bosnian Serbs within Bosnia known as Republika Srpska is not in doubt).

The Bosnian Muslim community asserts that the Srebrenica massacre was just one instance of what was a broader genocide committed by Serbia.

The International Court of Justice veered away from the factual and legal findings of the ICTY Appeals Chamber in the Duško Tadić case. In the judgment delivered in July 1999, the Appeals Chamber found that the Army of Republika Srpska was "under overall control" of Belgrade and the Yugoslav Army, which meant that they had funded, equipped and assisted in coordination and planning of military operations. Had the International Court of Judisim accepted this finding of the Tribunal, Serbia would have been found guilty of complicity in the Srebrenica genocide. Instead it concluded that the Appeals Chamber in the Tadic case "did not attempt to determine the responsibility of a state but individual criminal responsibility". Paradoxical as it may be, the outcome of this legal suit filed back in March 1993 arrived too early for Bosnia and Herzegovina. Radovan Karadžić arrest came over a year after the ICJ gave its judgement, and Ratko Mladić, also accused of genocide, was arrested in May 2011. Slobodan Milošević died during his trial and three trials of former Serb officials have just started.

Although the ICTY prosecutors had access to them during the trials, some of the minutes of wartime meetings of Yugoslavia’s political and military leaders, were not made public as the ICTY accepted the Serbian argument that to do so would damage Serbia's national security. Although the ICJ could have subpoenaed the documents directly from Serbia, it did not do so and relied instead on those made public during the ICTY trials. Two of the ICJ judges criticised this decision in strongly worded dissents. Marlise Simons reporting on this in the New York Times, states that "When the documents were handed over, the lawyers said, a team from Belgrade made it clear in letters to the tribunal and in meetings with prosecutors and judges that it wanted the documents expurgated to keep them from harming Serbia’s case at the International Court of Justice. The Serbs made no secret of that even as they argued their case for 'national security,' said one of the lawyers, adding, 'The senior people here knew about this'.". Simons continues that Rosalyn Higgins the president of the ICJ, declined to comment when asked why the full records had not been subpoenaed, saying that "The ruling speaks for itself". Diane Orentlicher, a law professor at American University in Washington, commented "Why didn’t the court request the full documents? The fact that they were blacked out clearly implies these passages would have made a difference.", and William Schabas, a professor of international law at the University of Ireland in Galway, suggested that as a civil rather than a criminal court, the ICJ was more used to relying on materials put before it than aggressively pursuing evidence which might lead to a diplomatic incident.

Some commentators believe that the Srebrenica massacre was not genocide. Typically, they cite that women and children were largely spared and that only military age men were targeted. This view is not supported by the findings of the ICJ or the ICTY. According to Sonja Biserko, president of the Helsinki Committee for Human Rights in Serbia, and Edina Bećirević, the faculty of criminology and security studies of the University of Sarajevo:

Denial of the Srebrenica genocide takes many forms . The methods range from the brutal to the deceitful. Denial is present most strongly in political discourse, in the media, in the sphere of law, and in the educational system.