IFIMES Analysis: Revision of the Verdict Against Serbia – Path to Justice or Violence?

The International Institute for Middle Eastern and Balkan Studies (IFIMES) from Ljubljana, Slovenia, regularly analyzes events in the Middle East and the Balkans. On the occasion of the announced revision of the ICJ verdict in the lawsuit of Bosnia and Herzegovina against Serbia, IFIMES has prepared an analysis of the situation and the possibilities of a successful revision. We highlight the most important and interesting parts from the analysis "BiH - Serbia: Revision of the ICJ Verdict – Path to Justice or Violence?".

Revision of the ICJ Verdict – Path to Justice or Violence?

In 1993, Bosnia and Herzegovina filed a lawsuit against the Federal Republic of Yugoslavia (Serbia and Montenegro) at the International Court of Justice (ICJ) in The Hague, the highest judicial instance in the United Nations system. The ICJ verdict was delivered on February 26, 2007, concerning the dispute related to violations of the Convention on the Prevention and Punishment of the Crime of Genocide, adopted by the UN General Assembly on December 9, 1948, and various issues that BiH claimed were related to it. The verdict represents a significant international legal judicial act, as the highest UN court defined the massacre of Bosnian Muslims in Srebrenica as genocide, for which it does not hold Serbia responsible and rejects the claim for financial compensation, but holds Serbia responsible for failing to prevent the crime and punish the perpetrators.

Revision as a Legal Institute Permitted by the Statute and Rules of Procedure (ICJ)

Article 61 of the ICJ Statute and Article 99 of the ICJ Rules of Procedure stipulate the conditions and procedures for initiating a revision of a judgment. Article 60 of the Statute states that ICJ judgments are final and without appeal, which is why the revision procedure is very specific and requires new decisive evidence that was not known at the time the judgment was rendered. Filing a revision does not automatically open proceedings before the ICJ; rather, the Court decides whether the evidence meets all the necessary conditions to proceed with the revision as a legal institute permitted by the ICJ Statute and Rules. The general deadline for filing a revision is 10 years from the delivery of the ICJ judgment, and the initiation of a revision is requested within six months of becoming aware of new evidence. In the event of a potential revision request by Bosnia and Herzegovina, the Republic of Serbia has the right to submit its opinion on the admissibility of the application-revision within a deadline set by the ICJ or the President of the ICJ, and if the Court is not in session, the Serbian side's opinion is then also submitted to the BiH side, and the ICJ may request additional statements or clarifications from the parties before making a final decision on whether to open proceedings on the submitted revision at all. Therefore, a potential revision filed by Bosnia and Herzegovina does not automatically open revision proceedings before the ICJ, but rather a series of preliminary proceedings, and then the ICJ's decision would be awaited on whether Bosnia and Herzegovina has submitted sufficiently convincing and decisive evidence to initiate revision proceedings before the ICJ, with the active participation and certainly the contestation of the Republic of Serbia.

There is no significant case law regarding the revision procedure before the ICJ, and the Statute and Rules of Procedure, which have been amended over time, do not contain precise definitions regarding representation in the revision procedure, especially considering that various political representatives and experts dispute the legality and legitimacy of the revision procedure for the former BiH agent, who represented BiH's lawsuit against FRY-Serbia. If Bosnia and Herzegovina were to file a revision request through the former agent, it is highly likely that Serbia would raise the issue of the legality of representation as a preliminary question, both politically and from Serbian representatives in BiH. The former BiH agent before the ICJ has not been recalled, while on the other hand, ICJ rules require that states involved in a dispute before the ICJ must have their agent throughout the proceedings, meaning they must ensure continuity of representation.

A revision can be submitted through official diplomatic channels, indirectly and directly, and by authorization. In any case, any potential challenge to the legitimacy, method, legality, or channels of submitting a revision request by Bosnia and Herzegovina would certainly deserve a special approach by the ICJ and, according to analysts' opinions, could not be reduced to a simple check of the legality and legitimacy of the representative and/or applicant by the ICJ Registrar, but could include a special procedure and debate, as well as decisions regarding legality. The fact that the BiH agent before the ICJ in the BiH v. Serbia case was never officially dismissed by the BiH Presidency, which appointed him, provides an additional argument for Bosnia and Herzegovina in interpreting legality under domestic law.

BiH and Serbia Have the Right to a 10-Year Revision Period

The general period for filing a revision before the ICJ is 10 years and expires at the end of February 2017. Both parties to the dispute, BiH and Serbia, have the procedural possibility to file a revision request. According to statements by Bakir Izetbegović, member of the BiH Presidency, Bosnia and Herzegovina is considering filing a revision request. Serbia, officially, apart from some political statements in reaction to the announced revision by BiH, has not indicated any intention to initiate a revision. The Serbian side, after BiH files a revision request, would have the procedural possibility, with the ICJ's approval, to comment on all essential aspects of the submitted revision.

The hints and statements from Serbian officials in BiH, and even some international representatives in BiH, that there are no "new evidence" for revision and that the former BiH agent before the ICJ, or no one currently in BiH, has the right and authority to initiate a revision are unlawful statements, as only the ICJ can decide on these matters. Any prejudgment and taking of stances that there is no evidence, no legal and procedural possibility to file a revision, are not only unprofessional and unlawful statements but also prejudge the final decisions of the ICJ. Even if a revision were to be filed and publicly announced, it would still be the ICJ, or the competent court, that would decide on everything. Therefore, all unlawful comments do not contribute to legal certainty and increase political tensions.

Political Representatives of the Serb People in BiH Did Not Dispute BiH's Lawsuit Before the ICJ

The attitude of Serbian political and other representatives in BiH towards the process in which BiH sued the Federal Republic of Yugoslavia (FRY) - Serbia before the ICJ in 1993 for violating the Genocide Convention is definitely unclear. Firstly, Momčilo Krajišnik, as the Serb member of the BiH Presidency, did not dispute BiH's lawsuit against Serbia before the ICJ, although he had the right to do so within three months, as did any member of the BiH Presidency, regarding international treaties or acts signed by one of the so-called three sides in BiH from 1992 until the signing of the Dayton Peace Agreement. The National Assembly of Republika Srpska (NSRS) also did not dispute BiH's lawsuit against FRY (Serbia) before the ICJ within the prescribed three-month period. When Sakib Softić was appointed as BiH's agent before the ICJ, after Muhamed Šaćirbegović's dismissal, the Serb member of the BiH Presidency again did not invoke vital national interest, and Agent Softić received legitimacy to continue representing and advocating for BiH before the ICJ in the lawsuit against Serbia.

It is evident that Serbian representatives in BiH did not consider it necessary to stop BiH's lawsuit against Serbia at the ICJ. Analysts believe that initially Radovan Karadžić and Momčilo Krajišnik, and then other Serbian representatives, dissatisfied with the (re)distribution under the Dayton Agreement, sought revenge against Slobodan Milošević, but also wanted to create a permanent situation of the lawsuit's existence to hold Serbian politics hostage and keep Serbia's attention on issues concerning Republika Srpska. Regardless, this policy resulted in the ICJ verdict under which Serbia was found liable for failing to prevent and punish genocide, and the army and police of Republika Srpska were found guilty of the crime of genocide in Srebrenica. It is interesting that Serbia celebrates its acquittal from direct responsibility for genocide as its victory, even though it was found liable for the most horrific crime – the crime of genocide. In this regard, the political statements of Serbian representatives in BiH, according to analysts, are actually a concern for Republika Srpska today, as they are aware that the revision process could potentially reopen the role of Republika Srpska (RS), and that almost no one mentions Serbia anymore.

In their statements, they claim that the revision process would even lead to the disintegration of BiH. The impression is created that the representatives of Republika Srpska are more concerned and show more nervousness about the revision procedure than official Belgrade. Serbian representatives in BiH, after the ICJ verdict of February 26, 2007, that the Army (VRS) and the Ministry of Internal Affairs of Republika Srpska committed genocide in Srebrenica, have continuously denied genocide and dispute the ICJ verdict, as well as the ICTY verdicts.

Why Did Serbian Representatives in BiH Accept the ICJ Verdict Holding the Army and MUP of Republika Srpska Directly Responsible for the Crime of Genocide?

Analysts raise the question of why Serbian representatives in BiH, who deny genocide in various ways, did not raise the issue of the findings from the ICJ verdict, considering that in the BiH v. Serbia case, the ICJ verdict identified the army and police of Republika Srpska as direct perpetrators of genocide, not Serbia, which was sued for it. BiH sought Serbia's responsibility, and the ICJ found Serbia liable for failing to prevent and punish genocide, and the RS authorities for directly committing genocide. Perhaps the political representatives of Serbs in BiH expected Serbia to initiate a revision in which, in addition to its own responsibility, they would also deny the responsibility of Republika Srpska, or perhaps both Serbia and Republika Srpska were satisfied with the verdict that found them liable. But then it is puzzling why both Serbia and the representatives of Republika Srpska deny responsibility for genocide at all political and legal levels, instead of doing so before the world court that declared them responsible for genocide.

Certainly, a revision by BiH would focus on Srebrenica and Serbia's responsibility, making it even more unclear why Serbia's interests are more important to Serbian political representatives in BiH and Republika Srpska than the interests of Republika Srpska.

The Role of Čović and Đukanović in the Revision Process

Analysts point out that the final activities for a potential revision process by BiH before the ICJ began a year ago. A nine-year period is a completely realistic timeframe for one party to try to investigate and gather all relevant information and evidence that could be decisive for initiating the revision process. The 1993 lawsuit, by which BiH sued FRY-Serbia for violating the Genocide Convention, is essentially the only possibility before the ICJ to establish state criminal responsibility, as it is known that criminal courts, both national and international, such as the Permanent Criminal Court (ICC), the International Criminal Tribunal for the former Yugoslavia (ICTY), etc., are competent for grave violations of international humanitarian law.

Numerous other examples before the ICJ are known where states accused each other, for example, of armed activities on the territory of another state (e.g., the Democratic Republic of Congo v. Uganda), where the ICJ ruled and considered that, for instance, Uganda had violated the principles of non-use of force in international relations and non-intervention, or that Uganda had violated its obligations under international humanitarian law conventions.

Analysts believe that proving a state's criminal responsibility for committed genocide is an incomparably more difficult and complex task for a state than other forms of state responsibility. Especially since, in the BiH v. FRY-Serbia case, the ICJ applied the highest standards previously applied by the ICTY/Criminal Tribunal for the former Yugoslavia in trials and proceedings against individuals responsible for the crime of genocide in BiH. By applying the criminal procedures and standards of another international court (ICTY), which establishes individual responsibility, the ICJ set an almost unattainable standard for a state to be directly responsible for violating the Genocide Convention, accepting only final legal conclusions from the ICTY, which is also a subject of critical opinions and legal analyses. Much has been written about the ICJ verdict in the dispute between BiH and FRY, i.e., Serbia, and the very definition of the crime of genocide, or how the crime of genocide can be proven before an international court, whether for individual or state responsibility, remains an open question.

Experts believe that there must be different approaches to proving state responsibility. In this regard, it is considered that BiH had a very difficult task in collecting evidence for revision that would contain genocidal intent or additional information about Serbia's violation of the Genocide Convention. There is countless evidence of FRY-Serbia's involvement in the war in BiH, and Serbia itself does not shy away from admitting its active participation in BiH through the JNA-VJ and the 30th Cadre Center, its generals, the Ministry of Internal Affairs, and special units, as well as continuous military, logistical, and financial assistance to Bosnian Serbs. However, the ICJ confirmed that it did not issue orders to the JNA-VJ, special units of the VRS, or the MUP of Republika Srpska to commit genocide (other crimes such as extermination, war crimes, and other crimes against humanity were not within the ICJ's jurisdiction), or that even when units of FRY-Serbia were in BiH and committed crimes (Scorpions, etc.), they were subordinate to Republika Srpska, i.e., the VRS or the MUP of Republika Srpska, or acted "independently".

Momčilo Perišić, Chief of the General Staff of the VJ, was sentenced to 27 years in prison by the ICTY, but Theodor Meron, President of the ICTY, due to the influence of major powers, changed the standards and acquitted Perišić of all charges, including Srebrenica, in the appeal proceedings (he had previously chaired the panel that acquitted Ante Gotovina). Although "Meron's standards" were changed after a series of ICTY judgments, Meron, as President of the ICTY, never allowed the request for revision from the Chief Prosecutor of the ICTY, Serge Brammertz, against the acquittal verdict for Perišić.

Bakir Izetbegović and legal experts are under strong pressure from representatives of the international community, as well as from Dragan Čović, member of the BiH Presidency and president of the Croatian Democratic Union of BiH (HDZ BiH). The question arises whether and how much Montenegro, which is absolutely protected from the revision process because Serbia officially assumed legal succession and thus all responsibility for itself before the ICJ, helped BiH to expose Milošević's regime and the genocide committed in BiH. This is especially considering the archives of the Army of Yugoslavia and the State Security Service (SDB) of the then common state, which are located in Podgorica. Some Bosnian-Herzegovinian leaders have strong friendly ties with the leader of Montenegro, Milo Đukanović.

The strongest friendly ties with Đukanović are held by the president of the Alliance for Better Future of BiH (SBB), Fahrudin Radončić. Therefore, it is logical to expect that the SBB leader will do everything in his power to help his friend achieve justice and prove the truth.

Analysts believe that representatives of HDZ BiH and representatives of the Croatian people will not officially obstruct the filing of a potential revision by BiH before the ICJ in the event of certain state decisions.

By disputing the revision, Croats and Croatia would also enter into the process of disputing crimes, and it is evident that the revision could also focus on the crime of genocide in Srebrenica in determining Serbia's direct involvement. Whether the Croatian people truly do not want the victims from Srebrenica to achieve their rights and the possibility of revision is a "million-dollar question for Dragan Čović." Also, it should not be forgotten that BiH's lawsuit for genocide also covered Croats who suffered in the Bosnian Krajina region. Čović is taking on great historical responsibility by unreasonably siding with official Belgrade (and not RS, or any Serbian political representative in BiH, as the potential revision is by BiH against Serbia) regarding the filing of BiH's revision before the ICJ.

Whose Name is Ambassador Moore Speaking In?

Ambassador Jonathan Moore, Head of the OSCE Mission in BiH, has grossly abused his mandate with his public statements that there is no new evidence and that BiH should not file a revision before the ICJ, thus attempting to prevent the filing of a revision through public pressure on the BiH legal team and Bakir Izetbegović. The question arises in whose name Ambassador Moore is speaking and whether he deserves to be recalled from BiH as the OSCE Ambassador for such statements. It is precisely the representatives of the international community who should and must ensure a democratic environment and the rule of law. The rule of law precisely means ensuring the conditions for a state, which ten years ago concluded proceedings against another state before an international court, to have the opportunity to try to use the guaranteed international remedy, the revision procedure before the ICJ, as one of the main UN bodies. Calling for justice while simultaneously exerting political pressure, as Ambassador Moore is doing, is a hypocritical statement and act, because justice is achieved through prescribed civil, international, and criminal procedures, by punishing criminals, individuals, or states. Another form of "justice" is known throughout history, when justice is taken "into one's own hands," which then necessarily leads to violence, and Moore's statements are precisely in that direction, suggesting that the victim or the state promotes the realization of justice in a private and impermissible way, rather than judicially, which leads to anarchy, violence, and even crime.

What and Who Threatens Regional Security?

Precisely, the Prime Minister of the Republic of Serbia, Aleksandar Vučić, could play an important role if he were to call on Bosnian Serbs to de-escalate political tensions and allow the ICJ process to conclude if BiH files a revision request. The question arises: if Serbia were to announce or file a revision request, would anyone, including Bosniak representatives, politically dispute that request for revision of the ICJ verdict?

Certainly not. All those who are against the revision that BiH would initiate and claim that there is no new evidence, including some international representatives, would, at Vučić's call, realize that only the ICJ can decide and say whether there is new evidence or not, and whether BiH can initiate the revision process, and not politicians at all. Just as it is perfectly clear that the decision to initiate a revision can only be initiated by the legal team of BiH through the strength of arguments, and not by politics, which supposedly should decide whether there is evidence or not. The decision is legal and not political at all. Filing a revision before the ICJ could indeed restore trust if the revision process were viewed as a legal act, because to the extent that opponents of revision believe that filing a revision endangers BiH and regional security, they themselves are endangering that same security. Do international and national representatives in BiH who are against revision believe that Serbia has the right to file a revision if it considers itself unjustly convicted for failing to prevent or punish genocide, or would the critics of revision be against Serbia filing a revision and seeking, with new evidence, that the army and police of Republika Srpska are not responsible for the crime of genocide in Srebrenica?

Since no one could theoretically or factually prevent Serbia from filing a revision, if Serbia's legal team believed it had evidence, why would anyone dispute that for the legal team of Bosnia and Herzegovina? Why would Bosnia and Herzegovina be in a different position than the Republic of Serbia and any other country, or why would it be denied the opportunity to use available legal instruments to prove the most serious crimes committed on the territory of Bosnia and Herzegovina between 1992 and 1995?