Category Archives: International Law

Bosnia now: the past and the future facing each other.

On the same day that the trial of Radovan Karadzic began in the Hague, war criminal Biljana Plavsic, who succeeded Karadzic as President of Republika Srpska was released from prison, after having served seven of the eleven years to which she had been convicted by the ICTY for her role on the war in Bosnia.

These two events occurred just a few days after the failure of the Butmir talks, the latests initiative to overcome the current political situation in Bosnia, which some define as crisis, but I prefer to define as deadlock, because, unlike in a crisis, the current situation perfectly serves on of the parts involved. While the current situation doesn’t satisfy anyone, doing nothing, leaving things as they are is clearly beneficial for the leadership of the Serb entity.

Headed by Milorad Dodik, the government of the Republika Srpska is actively working towards the disintegration of Bosnia by systematically obstructing the process of decision making, proving by its behaviour that any power-sharing is worthless when the actors are not willing or at least complied to share power.

APTOPIX Serbia War Crimes Plavsic

Upon her release from prison in Sweden, Bijlana Plavsic flew to Belgrade in the jet of the government of the Republika Srpska, and upon her arrival, was warmly received by Milorad Dodik. The image of this encounter are striking: the past and the future holding hands, like a mother and her son.

Both were, at a certain point, considered by the international actors involved Bosnia as moderate politicians worth backing. This tells a lot about the fallacy of the opposition between moderates and hardliners when it comes to Serb nationalism. Their moderation, Plavsic’s as well as Dodik’s, proved to be merely tactical. Through their seemingly moderate policies, when compared to those of Radovan Karadzic and his supporters, they gave a very important contribution to advance the cause of pursuing with the goal of disintegrating Bosnia and reinforcing the homogeneous ethnic composition of the serb entity.

During the war, Plavsic, aka the ‘iron lady’, was known by her extreme nationalism and her outright racism. A Professor of Biology, Plavsic had no problem in abusing the authority of science to justify her racism, by presenting ‘ethnic cleansing’ as “a perfectly natural phenomenon” and claiming that the Bosnian Muslims were “genetically deformed material”:

That’s true [i.e. her imagination that the Bosnian Muslims were originally Serbs]. “But it was genetically deformed material that embraced Islam. And now, of course, with each successive generation this gene simply becomes concentrated. It gets worse and worse, it simply expresses itself and dictates their style of thinking and behaving, which is rooted in their genes…

This was the ‘moderate’ politician who, after the war the international actors chose to back. And when she voluntary surrendered after being indicted by the ICTY, her ‘moderation’ seemed to be confirmed.  Thus, Plavsic had as her defense witnesses prominent figures such as Madeleine Albright and Carl Bildt, whose testimony was an important mitigating factor for the judges (here, see note 20). Plavsic went as far as showing remorse and appealing for reconciliation, and the sincerity of her words was confirmed by the statement of the witness Elie Wiesel.

In fact, by pleading guilty on the count of persecutions as a crime against humanity, she managed to obtain a bargain in which the prosecution dropped all other charges, including two counts of genocide. Her plea thus represented not a positive step towards reconciliation, but a lost opportunity to prove that a genocide was committed in Bosnia, by the Serb forces against the Muslims.

Early this year, Plavsic retracted her confession, in an interview to the Swedish Vi magazine :

I sacrificed myself. I have done nothing wrong. I pleaded guilty to crimes against humanity so I could bargain for the other charges.”

By pleading guilty on crimes against humanity so that she could get away with genocide, Biljana Plavsic sacrificed herself for the sake of the Nation, but her sacrifice was obviously not as hard as the one she thought it was right to impose on her own co-nationals. Indeed, for the sake of ‘Greater Serbia’ considered that the dead of as much as half the total ethnic Serb population would be a worthy sacrifice:

There are 12 million Serbs and even if six million perish on the field of battle, there will be six million to reap the fruits of the struggle“.

So, through her ‘sacrifice’, not only she managed to get her sentence substantially reduced, but she also avoided a conviction of genocide that would contribute to highlight the illegitimacy of the very existence of Republika Srpska.

If we look at the concept of legitimacy as springing from the founding act of any politically organized society, what do we see? We see the need to deny genocide, because legitimacy is the glue that binds people together in a politically organized society, while genocide is the ‘original sin’ upon which Republika Srpska was built. If someone like Bijlana Plavsic, or Milorad Dodik for that matter, chose to oppose the warmongering faction led by Karadzic, it was because they understand that violence was merely an instrument among others to achieve a goal.

Until now, the only conviction on the account of genocide by the ICTY was the case of General Radislav Krstic, the commander of the Drina Corps. However, his conviction for genocide covered solely the case of the Massacre of Srebrenica. The chance to get a conviction for genocide on a wider area than Srebrenica was also missed at the trial of Momcilo Krajisnik, in which the prosecution failed to establish the Krajisnik genocidal intent ( read Bosnia’s ‘accidental’ genocide, by Edina Becirevic. Krajisnik was convicted to 27 years in prison, but acquitted of genocide, and as a result of his appeal, the sentence was reduced to 20 years, overturning the convictions in several charges.

This appeal revealed major flaws in the prosecution’s strategy and sparked the fear that similar or even greater difficulties will be faced to convict Radovan Karadzic of genocide(about this debate, read ‘What Karadzic Prossecutors learnt from Krajisnik Trial’, by Simon Jennings).

Thus, bearing in mind the failure of the International Court of Justice (about this, read ‘The ICJ and the decriminalisation of Genocide‘, by Marko Attila Hoare, and ‘Vital Genocide documents concealed‘, by Florence Hartmann), and the fact that Ratko Mladic is still at large and most likely will never be captured, the trial of Radovan Karadzic represents the last chance to establish through international law, the full extent of the genocidal character of the aggression against Bosnia-Hercegovina (about this, it’s worth reading this post by Kirk Johnson at Americans for Bosnia).

The stakes are high. The result of this trial cannot but have an important impact on the Republika Srpska. It is not at all a matter of ‘collective guilt’, since guilt is always individual, but it is a matter of political legitimacy. The political identity of the serb entity is being built now as if it was an alien land, but the past keeps coming back and the urge for justice won’t go away so easily, as the case of the Spanish Civil war highlights.

However, for something to change in the current trend of ‘smooth’ disintegration, it is necessary that what is called the international community, meaning the relevant international  players in Bosnia, should make a serious reflection on what went wrong on their approach both of the conflict and of the post-conflict phase. That reflection is not at all happening and the result is clearly shown in the predictable failure of the Butmir talks.

Nonetheless, I do believe there are grounds for hope, for the simple reason that the future is not written in the stars but is rather built in the present and can always be changed. I believe real change must come from within the Bosnian society. Imposed solutions have already proved their limits, but international support for change will always play a crucial role. But for change to happen, we must stop waiting for a miracle, because time is not working on our side.

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Filed under Bosnia, Genocide, International Law, Nationalism, Srebrenica

Genocide in Rwanda: Life in prison for masterminders

Here’s the Press Release from the International Criminal Tribunal for Rwanda:

“”””Trial Chamber I today rendered judgement in the “Military I” case involving four senior officers of the Rwandan army in 1994: Colonel Théoneste Bagosora, Director of Cabinet in the Rwandan Ministry of Defence; General Gratien Kabiligi, head of the military operations bureau (G-3) of the army general staff; Major Aloys Ntabakuze, commander of the Para Commando Battalion; and Colonel Anatole Nsengiyumva, commander of the Operational Sector of Gisenyi.

It sentenced Bagosora, Ntabakuze and Nsengiyumva to life imprisonment for genocide, crimes against humanity and war crimes based on their role in crimes committed in Rwanda. The Chamber acquitted Kabiligi of all charges against him and ordered his release. It also acquitted each of the Accused of conspiring to commit genocide before 7 April 1994.

The Chamber found that, in the first days after the death of President Habyarimana on 6 April 1994, Bagosora was the highest authority in the Rwandan Ministry of Defence with authority over the Rwandan military. He was considered responsible for the killing, on 7 April, of Prime Minister Agathe Uwilingiyimana, Joseph Kavaruganda, the President of the Constitutional Court, as well as Frédéric Nzamurambaho, Landoald Ndasingwa and Faustin Rucogoza, who were opposition party officials and government ministers. He was found guilty in connection with the killing of ten Belgian peacekeepers who were killed by soldiers at Camp Kigali on 7 April. Bagosora was also responsible for the organised killings perpetrated by soldiers and militiamen at a number of sites throughout Kigali and Gisenyi between 6 and 9 April.

Ntabakuze was found guilty, as the commander of the elite Para Commando Battalion, for the participation of his soldiers in killings at Kabeza, Nyanza Hill and the L’Institut Africain et Mauricien de Statistiques et d’Economie (IAMSEA) in Kigali.

Nsengiyumva was considered responsible for massacres at Mudende University, Nyundo Parish as well as the targeted killing of civilians in Gisenyi prefecture, the area under his operational command. He was also guilty of sending militiamen to the Bisesero area of Kibuye prefecture to kill Tutsi refugees in June 1994″”””

The Prosecution alleged that Kabiligi participated in the distribution of weapons, meetings to plan the genocide as well as a number of specific crimes, many of which were related to roadblocks in the Kigali area. Kabiligi advanced a successful alibi for much of this time period. It was also not proven that he had operational authority or that he targeted civilians.

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Filed under Genocide, International Law

DENIAL OF JUSTICE: The case of Hasan Nuhanović.

In June I posted a press release about the law suit against the dutch state by a former translator, Hasan Nuhanović, whose family was handed to the serbs by the UN DutchBat.

The outcome of the case of Hasan Nuhanović against the dutch state was known today:

Concluding a six-year case, the Hague District Court said on Wednesday that the Dutch government could not be deemed responsible as its peacekeepers in Bosnia had been operating under UN command.

“The state cannot be held responsible for any breach of contract or wrongful act committed by Dutchbat [the Dutch military],” the ruling said.

“Neither is the state liable for wrongful action taken by those in charge of the armed forces or members of the national government.”

Two months ago, a similar case against the UN in a dutch court was rejected, due to the fact that the UN has the privilege of immunity:

A Dutch court has ruled that it is unable to hear a case brought against the UN by relatives of victims of the 1995 Srebrenica massacre in Bosnia.

The court ruled that UN immunity, enshrined in its charter, meant it could not be prosecuted by any state.

But it said a civil case against the Dutch state, over its troops’ failure to protect civilians, could proceed.

The status of immunity, which the text from the BBC incorrectly says to be enshrined in its charter, is a consequence of the application of the doctrine of implicit competences to international organizations. This doctrine states that an International Organization must be able to use not only the powers explicitly  predicted in their constitutive treaties, but also the necessary powers to be able to fulfill the goals to which it was created.

This was recognized by the International Court of Justice in 1949, in the case called “Reparation for Injuries Suffered in the Service of the United Nations“, after the assassination of the UN mediator in Palestine, Folke Bernardotte. The ICJ recognized that the UN has international juridical personality, and that its agents benifict from priviledges and immunities paralel to those that diplomats and other state officials have.

These privileges and immunities were granted to make sure that the UN was granted with a level of autonomy that allowed it to fulfil its goals, which are, above all, the goal of preserving peace and security.

It was supposedly to fulfil the goal of preserving peace and security that the ‘safe areas’ were created.

we all know how this ended…

But still, despite having totally failed in fulfilling the goals that legitimize the existence of the status of immunity,it is those legal mechanisms that are invoked to deny justice to the victims.

We are here upon a scandalous case of the spirit of justice being distorted. The victims cannot ask the UN for responsibilities, because the UN has immunity, but the dutch state cannot be  considered responsible because its military were acting under the UN.
The UN, which failed to protect the victims, is successful in protecting itself and its agents from those which it failed to protect, while not only the dutch government, but also the dutch judiciary system wash their own hands, dismissing their own responsibilities, not only towards the victims, but also towards the idea of justice itself.

All of it in the name of international peace and security…

…tasteless wall paintings, it seems that was the true mission of the dutch bat… thirteen years latter, the drawings are still there, and not the drawings. behind this wall is the room depicted on the photo above.

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Filed under Bosnia, International Law, Justice, Srebrenica

SERBIA BETRAYED BY RUSSIA

Russia recognized today the independence of Abkazia and South Ossetia.

While negotiations for the settlement of the status of Kosovo were going on, the serbian government based its strategy strategy in the belief that Russia would prevent the independence. Instead of adopting a constructive approach, the serbian government preferred to use the tactic of delay. To delay any settlement and to prolong the negotiations for as long as possible was its tactics, while on the ground it was working towards the reinforcement of parallel structures on the north.

The international community played Serbia’s game for a while, in part because of its lack of will to take decisions, in part because of the bluff that the loss of the cradle of the nation would bring the radicals to power. After a while the bluff didn’t work anymore, and the states supporters of the independence forced Serbia to show its cards. The independence was declared, the centre of Belgrade was vandalized and looted by angry patriots who decided to take revenge by destroying public property and stealing from their co-citizens. Finally, the general elections results confirmed that the bluff had failed. The nationalists lost their last opportunity to seize power in Serbia, and were then betrayed by SPS and even by their allies within BIA.

The new government chose to adopt a new approach, certainly a more clever one, by asking the UN General Assembly to ask the Internacional Court of Justice for an Advisory Opinion regarding the legality of the declaration of Independence and the recognition by other states. Although such move would be devoided of legal consequences, because an advisory opinion is not legally binding, Serbia was thus trying to:

1- Create a situation where those states who haven’t yet recognized Kosovo as an independent state would opt to wait and see, thus making it more difficult for Kosovo to be integrated in the international community, and in particular to prevent its access to international organizations;

2- Present itself as an unselfish defender of International Law, and not merely as a state who is fighting for its national interests. regarding this issue, we might ask, what would serbia do if the ICJ decided that there had been no violation of International Law? Would Serbia then recognize Kosova and find a modus vivendi that allowed the kosovar serbs not to be used as mere instruments of Belgrade? Or would it simply disregard the decision, with the argument that it is not biding anyway???

I very much prefer that Serbia acts to defend its interests and even the International Law by using the international juridical mechanisms at its disposal rather than by burning foreign embassies ( which is, by the way, a violation of International Law), and I am very happy to see that some changes are occurring in Serbia that may be crucial for the establishment of an open society and the marginalization of nationalism.

But the fact is that, regarding Kosova, there was merely a change in tactics, not a change in policy or even strategy. In this sense, Serbia received today a major blow by its major ally, Russia.

By deciding to recognize the independence of Abkazia and South Ossetia, Russia put Serbia in a position where, not only it will be unable to keep claiming to be on the side of those who want to protect the international system by defending its territorial integrity, but also on a situation where a favorable decision of the ICJ will further highlight the scandlous violation of International Law by Russia.

Such move by Russia is hardly surprising. In February 2006, Putin said:

“We need common principles to find a fair solution to these problems for the benefit of all people living in conflict-stricken territories…. If people believe that Kosovo can be granted full independence, why then should we deny it to Abkhazia and South Ossetia?” he said.

“I am not speaking about how Russia will act. However, we know that Turkey, for instance, has recognized the Republic of Northern Cyprus,” Putin added. “I do not want to say that Russia will immediately recognize Abkhazia and South Ossetia as independent states, but such precedent does exist.”

While those pushing for the independence of Kosova argued that it would be a unique case, a consequence of the desintegration of Yugoslavia and of the major Human Rights violations that the kosovo albanians endured, Putin’s Russia was arguing for the establishment of ‘common principles’.

Thanks to the logic of appeasement that dominated the european democracies, Russia’s position was taken as a serious argument made by a big power that was interested not to upset the current balance of the International System. The argument which the appeasers used was that, if Russia accepted to back Kosova’s independence, that would have serious consequences in its internal order, bearing in mind cases such as Chechenia. It amazes me that anyone could take such argument seriously, because we all know how Russia has dealt with Chechenia.

In fact, what Russia did was to make a self-fulfilling prophecy. While refusing to accept Kosovo as a unique case, it became the first state to take advantage of the ‘precedent’ that Russia itself was claiming it would be set by the Independence of Kosova.

It is interesting to note that Russia was careful enough to use the same line or arguments that NATO used to legitimize the intervention in Kosovo in 1999. We could then ask why then Russia did not act to prevent the genocide of the Chechen people. Leaving that ‘detail’ aside, a major difference emerged, which can help us identify the difference between the arguments based on the duty to protect and humanitarian intervention and the Munich-style line of arguing. NATO did not intervene to protect the citizens of its member states. Neither did those member states distributed passports among the kosovo albanians so that they might latter claim that they wer national citizens of those states

We can thus conclude that, as so many times before, Russia once again used Serbia for its own purposes, and then betrayed it. This is what happens when you have unreliable friends.

On the other hand, we may ask, while Serbia was indeed betrayed, what about the greater-serbian nationalists? This step by Russia favours them, well, it might favour them more if they were in power, if the outcome of the last elections had been slightly different. But we must remember that these people think on a long-term scale. This means that all efforts to reverse the results of genocide in Bosnia must be made, because time works for those seeking partition. Greater-serbian ‘patriots’ don’t mind loosing Kosovo if that means that in twenty years they may grab ‘republika srpska’. Anyway, in their minds, they see the independence of Kosovo as only temporary. It’s sacrifice will be avenged one day, so those sick paranoids think.

However, the fact that they lack the means to accomplish their dream for now represents an unique opportunity to promote the opening of the reversal of the effects of ‘ethnic cleansing’ in Bosnia and to support the progressive forces in Serbia in such a way that, in twenty years time the sick paranoid greater-serbian nationalist will have nothing better to do than to talk for themselves. But this requires a vigour on the part of european democrats that seems to be lacking. In a way, this crisis is the product ofa wider crisis of values within the EU states too, which is reflected in the lack of commitment to support freedom and justice whenever that comes with the slightest cost.

Additional readings:

On Radio Free Europe:

Haw the West been hypnotised by Russia?

Fears that Crimea could be the next flashpoint for conflict with Russia.

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Filed under Bosnia, EU, Georgia, International Law, Kosovo, Nationalism, Russia, Serbia, War

LETTER FROM BELGRADE

This is a letter I have just received from a colleague from Belgrade:
Dear all,
I would like to share with you one information that made me very happy!
Radovan Karadzic, leader of Bosnian Serbs during the war in Bosnia, indicted before the ICTY for variety of serious crimes, among other for the Srebrenica genocide, fugitive from justice for 12 years, has been arrested in Belgrade yesterday night.
During the press conference that was held a minute ago the high state officials of Serbia have stated that he was hiding in Belgrade, his identity was well hidden, he was working as the alternative medicine doctor in one Belgrade’s small doctor’s surgery (he was healing people ?!?). He was arrested in a bus when he was going to work.
I know that this all sounds a bit crazy, but it is true.
This story has 2 points:
1) Be careful in the future if you want to seek the advice from the alternative medicine doctor 🙂
2) Most important thing – the law enforcement bodies are usually very capable to do their work – it is the political will that is needed to confront the problem! That could equally be applied in the case of combating trafficking in human beings.
Warmest regards to everyone from Belgrade!

Andjelka

Andjelka, it’s just great to have friend like you. In the end it is people like you that will rescue Serbia’s lost dignity!

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Filed under Belgrade, Bosnia, Freedom, Genocide, Hope, International Law, Justice, Nationalism, Non-conformism, Serbia, Srebrenica

Kosova’s Independence and International Law: updated post.

One of my readers provided me with a translation of my text on Kosova’s Independence and International law.

This was very kind of him, and I am very grateful, both for his translation and his interesting comments, to which i still didn’t have time to fully anwser. The text published here is a slighty improved version of the one I published in portuguese in the other post, and the final section, after the photo, is completely new.

In February 17, 2008, before the Parliament of Kosovo, Prime Minister Hashim Thaçi declared the Independence of Kosovo, to which Serbia reacted, as would be expected, by proclaiming such a declaration illegal.

The Declaration of Independence stipulates that Kosovo will be a democratic, secular and multi-ethnic Republic, based on equality and non-discrimination, and explicitly mentions its connection with the Ahtisaari Plan, notably regarding the rights of minorities. If implemented, this will make Kosovo one of states in the world which gives the most protections and privileges to ethnic minorities. The Declaration also formulates the wish that NATO continue to exercise the functions it had under the mandate of Resolution 1244, and accepts the establishment of the International Civil Service an the UE mission as delineated by the Ahtisaari Plan.

The transition towards independence was prepared in co-ordination with the governments of the United States, the United Kingdom, Germany and France, as well as the High Representative for the Common Foreign and Security Policy of the EU, Javier Solana. Kosovo has already been recognized as an independent state by 41 countries, which thus took their part of the risks implied by such an attitude.

Such risks lie, on the one hand, in the fact that a non-consensual solution necessarily bears negative implications for the stability of the territory, and on the other, in the questionable character of its legitimacy since, according to International law the legality such act depends on the way one interprets Resolution 1244.

The ambiguous way in which it was written allows for two opposite ways of reading it, which in their turn depend on the perspective chosen to interpret it.

If a sovereignist perspective of international relations is privileged, the reference to Serbian sovereignty and the absence of a new UNSC Resolution are strong arguments against recognition.

Yet, if we give prominence to the respect for human rights and the principle of auto-determination of peoples, the perspective will be different.

The Resolution did not specifically define the method for determining the final status of Kosovo, but made an important reference to the need to respect the Final Act of Helsinki [1975].

The sovereignist perspective only invokes the articles related to territorial integrity and the principle of non-interference with the internal affairs of the states. Through that angle, not only the Declaration of independence, but the whole international involvement with the Kosovo issue since 1998 would be illegal.
I have opted not to retrospectively discuss the legality of the Kosovo intervention, since Resolution 1244 has legitimized it, admittedly after the fact, by invoking Chapter VII of the United Nations Charter.

In what regards the Final Act of Helsinki, the Resolution does not quote any article in particular, and that document also enshrines the principle of self-determination, respect for human rights and the protection of minorities. According to that perspective, the recognition of Kosovo independence does not violate Resolution 1244, and thus such an option does not result in any violation of International Law, since the creation of new states does not fall within the competences of the UN.

On that issue Serbia, which considers the recognition of Kosovo illegal in the context of International Law has announced its intention to ask for an advice from the International Court of Justice.

It is my opinion that to interpret the Helsinki Final Act in a strict way, referring to only the articles related to sovereignty is goes against the spirit of this document, and ignores its real meaning and the historical value that it has had in the defense of freedom. In fact, during the final stage of the cold war, eastern Europe dissidents like Vaclav Havel invoked the Helsinki Final Act in their defense. While such strategy didn’t prevent them from suffering the consequences of their defiance of the system, it enable them to make clear to the world that their states had no interests whatsoever to respect the International Law, and specifically the agreements their governments had signed.
While applying the Helsinki Final Act to the case of Kosovo, we can neither ignore the degree of violence to which the people of Kosova was systematically subjected since 1912, and particularly in the period between 1989, when its autonomy status was revoked by Slobodan Milosevic, and 1999.
Despite the serbian government vague promises that it would grant Kosovo a special status defined by the formula more than autonomy, less than independence, the fact that in the recent past its autonomy was taken away cannot be forgotten. Who could guarantee that in the near future, this act would not be repeated?
If we take in account that failing to protect Embassies from being attacked and arsoned is a flagrant violation of International Law, why should we give credibility to the serbian government argument that by refusing to accept the Independence of Kosovo they are not only defending their national interests and territorial integrity, but also defending International Law itself?

As soon as I have some available time, i will post a text about recognition of States and international Law, however, this will have to wait.

To those interested, I reccomend the work by International Law scholar Alain Pellet: here you can find his legal opinion on the issue of self-determination and International Law.

Just for the sake of honesty, I am not a lawyer neither a scholar in International Law. But still i think I am entitled to have my own opinion, because what is at stake here is an issue of freedom and justice, which are subjects that are not the monopoly of Law scholars.

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Filed under Freedom, International Law, Kosovo, Serbia