Remembering Bosnia while observing International Justice Day
by
Cenap Çakmak*

Interestingly, the very same day also almost coincides with the start of the genocidal campaign perpetrated against Bosnians by Serb militias in the former Yugoslavia and particularly in Srebrenica and its surrounding towns in 1995. The victims of the Srebrenica Genocide are remembered with agony every year in mid-July, yet there is still no prospect for the punishment of the perpetrators. Remembrance and observance go hand-in-hand, but war criminals enjoy impunity amid promises and commitments to bring them before justice. The same story recurs every year; victims and their families are now mature enough not to rely on bold statements articulating how those who committed the most egregious crimes will be effectively prosecuted.

They have every reason to remain skeptical and suspicious; they witnessed the failures of the UN and the entire international community to address their tragedy despite ample evidence proving the commission of horrible crimes. This is the story of these failures and ignorance by the UN in which even partial success should be attributed to efforts by civil society organizations.

A violent breakup

The tragedy of the Bosnians started in early 1991, shortly after the dissolution of the former Yugoslavia. Within a very short time, the breakup process proved to be violent, seriously affecting the security of millions of civilians. During the civil war, the commission of atrocities, ranging from plain killings to torture to death in various forms, from forced migration to systematic rapes, employed especially by the Serbs as a means of humiliation and ethnic cleansing, was too apparent; yet the community of states preferred not to intervene for a long time. In particular, the European states did not want the US to be involved in the matter, which they considered a European question. However, attempts by European institutions turned to be a big failure and disappointment.

Eventually, the UN Security Council decided to address the question, where deadlock might have caused serious damage to the organization and negatively affected its legitimacy as the overseer of global peace and security. On Sept. 25, 1991, the council acknowledged the seriousness of the problem and expressed its concern, that “the continuation of this situation constitutes a threat to international peace and security.” While it supported efforts led by European states, it also decided that “all states shall, for the purposes of establishing peace and stability in Yugoslavia, immediately implement a general and complete embargo on all deliveries of weapons and military equipment to Yugoslavia until the Security Council decides otherwise following consultation between the secretary-general and the government of Yugoslavia.”

However, the attempt neither sufficed to end the conflict nor alleviated the degree of violence. For this reason, the council took a further step and reminded the warring parties of their obligations under international humanitarian law to observe the provisions of the Geneva Conventions of 1949, and persons who committed or ordered the commission of grave breaches of the conventions were to be held individually responsible. The warning did not work, and numerous reliable reports continued to submit evidence of widespread atrocities of various kinds, most of them falling into the category of grave breaches of international humanitarian law. On Aug. 13, 1992, the council, referring to the practice of “ethnic cleansing,” strongly condemned the violations of international humanitarian law within the territory of former Yugoslavia. By the same resolution, it also decided that “all parties and others concerned in the former Yugoslavia, and all military forces in Bosnia and Herzegovina, shall comply with the provisions of the present resolution, failing which the council will need to take further measures under the charter.”

Further, on Oct. 6, 1992, the Security Council decided to establish a commission of experts to investigate and collect evidence of atrocities committed during the civil war. The commission’s mandate was to examine and analyze the information it may obtain through its investigations and submit its conclusions on the evidence of grave breaches of the instruments of international humanitarian law in the zones of conflict.

The Commission of Experts’ work culminated in 65,000 pages of documents, video records of over 300 hours and 3,300 pages of analysis. All this information was annexed to the final report prepared by the commission and subsequently referred to the then-established tribunal prosecutor.

However, it should be noted that the work of the commission has not been so easy, despite the fact that it was established under UN sponsorship. It did not receive any funding from the UN, which it badly needed to carry out field investigations. It had to seek external resources to complete its work. In the preparation of its report, the commission also had to rely on information and data provided by the International Human Rights Law Institute (IHRLI) of DePaul University in Chicago, directed by Professor Cherif Bassiouni.

The report concluded: “The level of victimization in this conflict has been high. The crimes committed have been particularly brutal and ferocious in their execution. … The magnitude of victimization is clearly enormous. … The practices of ‘ethnic cleansing,’ sexual assault and rape have been carried out by some of the parties so systematically that they strongly appear to be the product of a policy. The consistent failure to prevent the commission of such crimes and the consistent failure to prosecute and punish the perpetrators of these crimes clearly evidences the existence of a policy by omission.”

The commission’s success

The commission’s work was a real success. However, as it was conducting the investigations in the field, it became a real threat to the prospect for a political settlement, a resolution very much desired by the leading powers of world politics, including the US and the EU. Due to the fact that the evidence and information collected by the commission substantiated crimes committed requiring international criminal prosecution before an international penal tribunal, there would be no room left for negotiating with those who were perhaps criminals. For this reason, “it became politically necessary to terminate the work of the commission while attempting to avoid the negative consequences of such a direct action.”

Subsequently, the commission had to face obstructions by the UN Security Council. Bassiouni, who witnessed this obstruction first hand as chairman of the commission, wrote in a scholarly article: “An administrative decision was taken -- probably at the behest, but certainly with the support of, some of the permanent members -- leaving no legal trace of the deed. Thus, the chairman was administratively notified that the commission should end its work by April 30, 1994. When the commission’s mandate was terminated, it still had over $250,000 in a trust fund and had not yet completed its final report.”

The UN Security Council ultimately established an international tribunal vested with the authority to prosecute the criminals; however, it appointed the prosecutor one year after its establishment. By the time the prosecutor assumed office, the work of the commission was already terminated. There were serious concerns that the council deferred the appointment and rushed the termination of the commission’s mandate to prevent submission of substantial evidence by the chair to the prosecutor. However, despite the obstructive efforts, Bassiouni handed the huge collection of evidentiary documents to Prosecutor Richard Goldstone.

Based on substantial evidence transmitted by the commission, the tribunal was able to indict war criminals, some of whom it sentenced to imprisonment. Despite this partial success, for which we should thank the civil society sector, some of the prime suspects, including Gen. Ratko Mladic, still remain at large, enjoying impunity.

On International Justice Day, victims of the Bosnian Genocide and their relatives deserve remembrance. More importantly, in consideration of the constant failures, even ordinary citizens of the world should realize that they -- and maybe only they -- can make a difference in the way towards achieving global justice.