Išerić: Work on preventing potential future genocide

By Dr. sc. Enver Išerić

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Today, Bosnia and Herzegovina, the entire region, and indeed the world, await the pronouncement of the second-instance verdict against Radovan Karadžić for war crimes committed in the territory of Bosnia and Herzegovina. The media are full of comments and statements about the possible final outcome of this lengthy process. However, everyone should be aware of the fact that there is no earthly adequate punishment for the deeds committed by Radovan Karadžić. But precisely because of that, it is realistic, justified, and fair to expect the strictest sentence in the second-instance proceedings.

Justice in The Hague was violated at the moment when the Prosecution reached an agreement with the Republic of Serbia and allowed it to "black out" parts of the documents that were clear evidence of the joint criminal enterprise of officials from Serbia and Republika Srpska, which was also of decisive importance for the Verdict in the case of Bosnia and Herzegovina v. Serbia and Montenegro before the International Court of Justice. This is also confirmed by the fact that, despite this, the verdict in that case established Serbia's responsibility for violating the Convention on the Prevention and Punishment of the Crime of Genocide.
The next, and very important, issue in this and all other cases against those accused of genocide in Bosnia and Herzegovina is proving the intent to commit genocide. Regardless of the fact that all crimes committed in Bosnia and Herzegovina have elements of genocide (i.e., mass killings and all other acts defined as genocide, the most serious form of crime - actus reus, occurred, the court did not establish the existence of intent (except in the case of Srebrenica), even though the intention to commit genocide was openly announced in the Assembly of the Republic of Bosnia and Herzegovina as early as 1992.

With a narrower interpretation, which was present at the court in The Hague, the intent to commit genocide is very difficult to prove, as appropriate orders for the commission of genocide or the complete or partial destruction of a group were sought as evidence.

However, the intent itself (as a condition for classifying a certain act under the definition of genocide) of the perpetrator of a criminal offense does not have to be provable solely from explicit orders indicating the intent to commit genocide, but also from the mass commission of these acts (a) killing members of the group; (b) causing serious bodily or mental harm to members of the group; (c) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) imposing measures intended to prevent births within the group; (e) forcibly transferring children of the group to another group), and for which the perpetrator of the criminal offense, due to the mass scale and manner of execution, knew or should have known that they would lead to the complete or partial destruction of a national, ethnic, racial, or religious group as such.

In the case of Bosnia and Herzegovina, international justice has not been served regarding the determination of genocide in Bosnia and Herzegovina (throughout the entire territory and the entire war period) and the responsibility of the authorities of Republika Srpska and the Republic of Serbia for its commission. And it is expected that this will not happen even in the verdict against Radovan Karadžić, which will be delivered today.

What we can and should do is work on preventing potential future genocide and adopting a law prohibiting the denial of genocide, which the High Representative in Bosnia and Herzegovina should enact immediately and without delay, due to the impossibility of its adoption in the legislative body of Bosnia and Herzegovina, thereby only partially rectifying the consequences of the injustice in The Hague.