1504) Intl Court of Justice &Genocide Law (II)

In the Bosnia-Serbia judgment, the International Court of Justice at The Hague broadened the concept of "state responsibility" for genocide, as provided for in Article 9 of the Convention. This is a landmark development. Until this decision, the criminal responsibility was imputable only to persons (Article 4), and state responsibility was confined to the prevention of genocide and punishment of its perpetrators (Article 1).

The court contends, "Since the state has responsibility to prevent genocide, it cannot itself commit genocide." In other words it accepted the possibility that states can also commit genocide. It stated that the acts of genocide committed by certain "persons, groups or organs" (for instance high-level political authorities, army, intelligence and government-backed armed groups) could be attributable to the state itself. It underlined that a state that committed genocide can be held liable to pay indemnity to victims of genocide in line with the general rules of international law.

In this context, Bosnia, encouraged by the International Criminal Tribunal for the former Yugoslavia (ICTY) that judged the Srebrenica massacre as genocide, expected that the court would characterize as genocide similar massacres committed in other parts of Bosnia and hold Serbia accountable for its involvement in genocide. That was a mistake.

When we examined the file presented by Bosnia in February last year, we understood that the way Bosnia defended its case would not enable it to achieve satisfaction at the court. We conveyed our view to the Bosnian authorities, but failed to persuade them.

As will be recalled, in my previous column, I pointed out that, although we knew that the tragedy that was taking place in Bosnia was not genocide under law, we raised the genocide issue in order to put pressure on Serbia.

The aim of the grave crimes committed by the Serbs in Bosnia under the heading of "ethnic cleansing" was to create homogeneous areas for themselves. Their motive for the crime was of a political nature. Killing, wounding and massacring members of a group for political motives might not be tantamount to genocide.

However, the motive that mobilized the Serbs to exterminate Bosnians gradually lost its political character. The Serbs in massacring the Bosnians started calling them Turks or Turkish bastards. In particular, they were telling the nearly 50,000 women whom they raped that their children would now have Serb blood in their veins instead of Turkish blood.

If the Serbs had settled themselves only on ethnic cleansing, once they threw out the Bosnians from their region, they would not have been interested in chasing and killing them. In their frenzy, however, the Serbs even forgot that Bosnians were of the same race as themselves and racially different from Turks. They resurrected the hatred they had felt against the Turks during the Ottoman rule and passed it onto the Bosnians. They started killing them with a completely irrational racial motive.

It is understood once again after the Holocaust that the special "intent to destroy a group in part or in whole as such," i.e. genocidal intent, exists only when there is a racist motive in the perpetrator.

The Dutch attorneys of Bosnia, probably because of racism prevailing in their own country, dismissed the crucial importance of the racial motive, though it is strongly suggested by Professor William Shabas, a renowned expert on the subject, for the existence of special intent. As a result they lost the case.

The court, which reluctantly accepted the Srebrenica massacre as genocide in light of the ICTY judgment, classified other similar atrocities that had been committed by Serbs as not genocide.

Although Bosnian Serb army personnel records were kept in Belgrade and their weapons and ammunitions provided from there, the court judged that Serbia was not involved in genocide. It squarely put the onus of proof on Bosnia and did not force Serbia to allow access to its military archives.

The 1915-16 relocation of Armenians, different from "ethnic cleansing," is lawful under customary law. Contrary to the claims, it is proven that the Ottoman Intelligence Services, a government organ, were not involved in the relocation. The Ottoman administration has never entertained special intent to destroy the Armenians, against whom there was no racial hatred. By contrast the Armenian terrorist groups racially hated the "uncivilized" Turks. Unlike Serbia, Turkey did not hesitate to open up all its archives. Ironically the Armenian archives are still closed.

The fact that the court proceedings were almost entirely based on documents signifies that the Armenian genocide allegations could be resolved through arbitration, which is also bound to be based on documents.

Gunduz Aktan
14 March 2007