A License To Kill

On April 16, 1993 the United Nations Security Council passed Resolution 819. In it the Security Council demanded:

…that all parties and others concerned treat Srebrenica and its surroundings as a safe area which should be free from any armed attack or any other hostile act

A safe area was created around Srebrenica, in the newly formed Republic of Bosnia and Herzegovina, to protect the Bosnian Muslims from the heavily armed Bosnian Serbs that surrounded it. United Nations peacekeepers were deployed to the safe area to protect the unarmed Bosnian Muslims that had taken refuge there.

On July 6, 1995 Bosnian Serb forces under the leadership of Ratko Mladic laid siege to the town of Srebrenica. As the Serb forces began shelling the town, the residents of Srebrenica took refuge with the 600 lightly armed Dutch UN peacekeepers. The Dutch peacekeepers threatened to call in NATO air strikes against the Serb forces – however, after the Serb forces threatened to kill 30 Dutch soldiers they had taken hostage, the airstrikes were called off.

On July 11, 1995 Ratko Mladic and the Serb forces entered the town of Srebrenica. That evening Ratko Mladic and the Dutch commander, Colonel Ton Kerremans, shared a drink together.

The next day the Serb forces separated the women and children from the men. All men from the age of 12 to 77 were held for "interrogations". The women and children, all 23,000 of them, were bussed out of Srebrenica.

On July 13, 1995 the Dutch peacekeepers handed over 5000 Bosnian Muslim men for 14 Dutch soldiers that were captured by the Serb forces. On that same day the killings began. By the time the Dutch were allowed to leave Srebrenica, the Bosnian Serb forces had massacred over 7000 unarmed men.

The Srebrenica massacre was the most prominent of many war crimes committed by the Army of Republica Srpska (the Bosnian Serb forces) during the Bosnian War. It was the worst act of genocide in Europe since World War II. It was genocide that occurred as the United Nations and the so-called international community literally stood idle by.

The Bosnian Serbs were supported, equipped and funded by the government of Serbia during the Bosnian War. It is widely accepted that the Bosnian Serb forces were a proxy army for Serbia and Serbia’s leader Slobodan Milosevic. In fact, the International Criminal Tribunal for the Former Yugoslavia (ICTY), in its indictment of Slobodan Milosevic, called the Serbia-Bosnian Serb nexus a "joint criminal enterprise":

6. Slobodan MILOSEVIC participated in the joint criminal enterprise as set out below. The purpose of this joint criminal enterprise was the forcible and permanent removal of the majority of non-Serbs, principally Bosnian Muslims and Bosnian Croats, from large areas of the Republic of Bosnia and Herzegovina (hereinafter referred to as "Bosnia and Herzegovina" ), through the commission of crimes which are in violation of Articles 2, 3, 4 and 5 of the Statute of the Tribunal.

7. The joint criminal enterprise was in existence by 1 August 1991 and continued until at least 31 December 1995. The individuals participating in this joint criminal enterprise included Slobodan MILOSEVIC, Radovan KARADZIC, Momcilo KRAJISNIK, Biljana PLAVSIC, General Ratko MLADIC, Borisav JOVIC, Branko KOSTIC, Veljko KADIJEVIC, Blagoje ADZIC, Milan MARTIC, Jovica STANISIC, Franko SIMATOVIC, also known as "Frenki," Radovan STOJICIC, also known as "Badza," Vojislav SESELJ, Zeljko RAZNATOVIC, also known as "Arkan," and other known and unknown participants.

Counts 1 and 2 of the indictment against Milosevic were "Genocide" and "Complicity in Genocide" for crimes against Bosnian Muslims and Croats during the Bosnian War, specifically including the massacre in Srebrenica:

32. From on or about 1 March 1992 until 31 December 1995, Slobodan MILOSEVIC, acting alone or in concert with other members of the joint criminal enterprise, planned, instigated, ordered, committed or otherwise aided and abetted the planning, preparation and execution of the destruction, in whole or in part, of the Bosnian Muslim and Bosnian Croat national, ethnical, racial or religious groups, as such, in territories within Bosnia and Herzegovina, including: Bijeljina; Bosanski Novi; Bosanski Samac; Bratunac; Brcko; Doboj; Foca; Sarajevo (Ilijas); Kljuc; Kotor Varos; Sarajevo (Novi Grad); Prijedor; Rogatica; Sanski Most; Srebrenica; Visegrad; Vlasenica and Zvornik. The destruction of these groups was effected by:

a) The widespread killing of thousands of Bosnian Muslims and Bosnian Croats, during and after the take-over of territories within Bosnia and Herzegovina, including those listed above, as specified in Schedule A to this indictment. In many of the territories, educated and leading members of these groups were specifically targeted for execution, often in accordance with pre-prepared lists. After the fall of Srebrenica in July 1995, almost all captured Bosnian Muslim men and boys, altogether several thousands, were executed at the places where they had been captured or at sites to which they had been transported for execution.  [Emphasis in last sentence added by me.]

However, on February 26, 2007, in a stunning decision, the International Court of Justice (ICJ) declared that the Srebrenica massacre was genocide but the state of Serbia was not responsible:

In a 171-page ruling, the International Court of Justice said the massacre of thousands of Muslims by Bosnian Serb forces at the U.N.-protected Srebrenica enclave was an act of genocide.

But the 15-judge panel rejected Bosnia’s claim that the Serbian state was responsible for the killing, saying it did not have effective control over the Bosnian Serb forces it had helped arm and finance. Instead, the judges ruled that Serbia stood by and allowed the massacre to happen.

In the first test of the Genocide Convention (Convention on the Prevention and Punishment of the Crime of Genocide) since its inception, the international community failed to hold a state party accountable for the actions of its proxy force. The Convention, enacted in the aftermath of the Holocaust, was designed to prevent or punish precisely the kind of crimes that took place in Srebrenica. By failing to find Serbia guilty of genocide, the verdict has effectively sanctioned genocide by proxy.

The ICJ judgment sets a very high bar for state responsibility for genocide. The judgment states:

 –     The test of responsibility

          In order to ascertain whether the international responsibility of the Respondent can have been incurred, on whatever basis, in connection with the massacres committed in the Srebrenica area during the period in question, the Court must consider three questions in turn.  First, it needs to be determined whether the acts of genocide could be attributed to the Respondent on the basis that those acts where committed by its organs or persons whose acts are attributable to it under customary rules of State Responsibility.  Second, the Court needs to ascertain whether acts of the kind referred to in Article III, paragraphs (b) to (e), of the Convention, other than genocide itself, were committed by persons or organs whose conduct is attributable to the Respondent.  Finally, it will be for the Court to rule on the issue as to whether the Respondent complied with its twofold obligation deriving from Article I of the Convention to prevent and punish genocide. 

–     The question of attribution of the Srebrenica genocide to the Respondent on the basis of the conduct of its organs

The first of these two questions relates to the well-established rule, one of the cornerstones of the law of State responsibility, that the conduct of any State organ is to be considered an act of the State under international law, and therefore gives rise to the responsibility of the State if it constitutes a breach of an international obligation of the State.

          When applied to the present case, this rule first calls for a determination whether the acts of genocide committed in Srebrenica were perpetrated by “persons or entities” having the status of organs of the Federal Republic of Yugoslavia (as the Respondent was known at the time) under its internal law, as then in force.  According to the Court, it must be said that there is nothing which could justify an affirmative response to this question.  It has not been shown that the FRY army took part in the massacres, nor that the political leaders of the FRY had a hand in preparing, planning or in any way carrying out the massacres.  It is true that there is much evidence of direct or indirect participation by the official army of the FRY, along with the Bosnian Serb armed forces, in military operations in Bosnia and Herzegovina in the years prior to the events at Srebrenica. 

That participation was repeatedly condemned by the political organs of the United Nations, which demanded that the FRY put an end to it.  It has however not been shown that there was any such participation in relation to the massacres committed at Srebrenica.  Further, neither the Republika Srpska, nor the VRS were de jure organs of the FRY, since none of them had the status of organ of that State under its internal law.

          With regard to the particular situation of General Mladić, the Court notes first that no evidence has been presented that either General Mladić or any of the other officers whose affairs were handled by the 30th Personnel Centre in Belgrade were, according to the internal law of the Respondent, officers of the army of the Respondent – a de jure organ of the Respondent.  Nor has it been conclusively established that General Mladić was one of those officers;  and even on the basis that he might have been, the Court does not consider that he would, for that reason alone, have to be treated as an organ of the FRY for the purposes of the application of the rules of State responsibility.  There is no doubt that the FRY was providing substantial support, inter alia, financial support, to the Republika Srpska, and that one of the forms that support took was payment of salaries and other benefits to some officers of the VRS, but the Court considers that this did not automatically make them organs of the FRY.  The particular situation of General Mladić, or of any other VRS officer present at Srebrenica who may have been being “administered” from Belgrade, is not such as to lead the Court to modify the conclusion reached in the previous paragraph. [Emphasis added by me.]

According to the judgment, even though the Bosnian Serb forces were financed by Serbia, to the point where their salaries were paid by Belgrade, they cannot be considered to be an organ of the Serbian state. Furthermore, even though it can be shown that the Serbian army has participated directly and indirectly in military operations in Bosnia, since they did not participate in the massacre at Srebrenica, Serbia cannot be held responsible.

The legacy of the ICJ verdict is that as long as a government can maintain plausible deniability, it cannot be held liable for genocide committed by proxy local forces that are on its payroll. Many governments who have been accused of genocide because their proxies carried out mass killings will no doubt breathe a sigh of relief. From the genocide in Bangladesh in 1971 by local collaborators of the Pakistani army to the Sabra and Shatila massacre carried out by Israel’s proxy force in Lebanon to the Darfur genocide carried out by the Sudanese government-backed Janjaweed militia, the search for justice just became exceedingly difficult.

The impact on future conflicts also promises to be great. In an age where conventional wars are being replaced by proxy confrontations, the international community’s ability to hold accountable the ultimate lords of war has now been compromised.

The law is the last recourse of the powerless. This week international law failed the victims of Bosnia and all powerless victims of the evils of state sponsored genocide and terror.