REVISION OF THE PROCESS IS THE MATTER OF LAW AND MORALITY, NOT THE POLITICS AND I POLITICAL INTRIGUE *

Academic Prof. Dr SMAIL ČEKIĆ

 

REVISION OF THE PROCESS IS THE MATTER OF LAW AND MORALITY,

NOT THE POLITICS AND I POLITICAL INTRIGUE *

 

Numerous statements on potential revision of the process in the case of BOSNIA AND HERZEGOVINA VERSUS SERBIA AND MONTENEGRO before the International Court of Justice on the ground of violation of the Convention on prevention and punishment of the crime of genocide, made primarily by politicians, some university professors and quasi-researchers, then representatives of some international organizations have appeared lately, by means of electronic and printed media, in Bosnia and Herzegovina, but also beyond its borders. The contents of those statements are mainly dominated by the aggressive positions and ultimatums of the ethnic Serb politicians (from Bosnia and Herzegovina and the Republic of Serbia), who, once this matter is mentioned, experience penicillin shock.

The public, particularly the scientific public, is well aware of the background of this process, especially its outcome – JUDGMENT, which initiated and resulted in a divided debate and divisions within the academic community and case-law, according to which, inter alia, the Republic of Serbia is the only country in the world that violated (on three grounds of responsibility) the Convention on prevention and punishment of the crime of genocide. Although the criminal proceedings was corroborated by sufficient relevant, valid, and reliable evidence to establish the international criminal responsibility of Serbia and Montenegro / Federal Republic of Yugoslavia for all punishable underlying acts of genocide (forms of engagement in genocide) defined as such in the Convention on the Prevention and Punishment of the Crime of Genocide, supported inter alia by the explicit and corroborated Consenting Opinion by the Vice-President of the International Court of Justice, the Republic of Serbia, according to the Judgment “has not committed genocide, through its organs or persons, whose acts engage its responsibility under customary international law…”; “has not conspired to commit genocide, nor incited the commission of genocide…” and “has not been complicit in genocide…”. So, the Court practically exonerated Serbia from the direct international responsibility for genocide in the Republic of Bosnia and Herzegovina (except for the responsibility for failure to prevent genocide in Srebrenica in July 1995: “Serbia has violated the obligation to prevent genocide, under the Convention on the Prevention and Punishment of the Crime of Genocide, in respect of the genocide that occurred in Srebrenica in July 1995” – which is in contravention of the adequate, valid, reliable, and supporting relevant evidence. International Court of Justice transferred the responsibility for the crime of genocide committed against Bosniacs “in Srebrenica in July 1995” from the state Serbia and Montenegro / Federal Republic of Yugoslavia “to the Bosnian Serbs who devised and implemented the genocide in Srebrenica”, more precisely the political, military and police leadership of the pseudo state creation Republika Srpska.

The Judgment of the International Court of Justice is predominantly based on the ICTY evidence (legal qualification of the facts), and exclusively on the Judgments in the cases Krstić and Blagojević, in terms of the reconstruction and nature of the crime (of genocide) in Srebrenica, whose jurisdiction and competence is to establish the individual criminal responsibility, by which the relevant evidence is limited and directed only towards the actions by the indicted individual (the Court has failed to acknowledge the essential difference between the criminal proceedings against one person – individual and international criminal responsibility of a state for the genocide, nor it accepted the entire complexity and gravity of the crime of genocide, or the comprehensive approach in considering the mutually correlated essential facts). It is apparent that this is not this Court’s research, but the takeover of somebody else’s research results (ICTY). International Court of Justice, in addition to contesting, ignoring, and dismissing relevant facts and crucial and convincing evidence, then ill-founded, invalid, unreliable, hypothetical, controversial, contradictory, and erroneous assessments and conclusions, yet under the relevant (big) influence of the ICTY conclusions, made a selection of results taken over from the ICTY and took only those legal qualifications which suited the author/s of the Judgment. This was best expressed, just as an illustration, in application of high standards related to proving the genocidal intent and establishment of control of a (certain) state and its responsibility, particularly in proving the attributability to a state through the test of its control (effective and overall control of a state), which is not in line with the facts surrounding this dispute or the relevant ICTY jurisprudence. Such an approach and attitude will clearly significantly influence potential revision of the Judgment, and the subject of the revision is most probably fully aware of this fact.

The state, political, and military leadership of the Federal Republic of Yugoslavia /Serbia and Montenegro/ has obstructed, least to say, this process (the most complex and difficult case) for 14 years, even by contesting the jurisdiction of the International Court of Justice (hearings on merits were constantly postponed through the “procedural battle without any precedent”) and in line with the agreement reached between the ICTY Chief Prosecutor Carla Del Ponte, and the Federal Republic of Yugoslavia Foreign minister, Goran Svilanović, as well as decisions of some ICTY judges, by concealing evidence having applied protective measures for the key documents. In this way, the most responsible UN lawyers (the area of international law), with the intention and well defined objective, made and continued to make covert agreements (an offense) with the state Federal Republic of Yugoslavia / Serbia and Montenegro, which committed genocide, in order to prevent Bosnia and Herzegovina to win this case, mankind to get justice, genocide victims to be served just any satisfaction, while facilitating Serbia to avoid paying billion worth war compensation (reparation) – compensation for genocide (committed against natural persons and the property of natural and legal persons). International Court of Justice, among other things, did not accept a single motion of the Applicant to be supplied with the unredacted, complete documents of the Supreme Defense Council of the Federal Republic of Yugoslavia. These coordinated and synchronized activities were only in the interests and for the account of the state-aggressor, not the genocide victim, that is, this is a crime with the far-reaching consequences primarily for the genocide victims, but also for the entire mankind, which also confirms that the dominant part of the United Nations and the leading countries of the so-called international community protected, and they unfortunately still do, the state that committed genocide. The question is therefore rightfully raised if the world powers would act the same way if the genocide victims were Christians? This case pertains to the genocide victims who are Bosniacs-Muslims, autochthon peaceful European nation, which throughout its history has never had its own fascistic ideology or fascistic movement, which is the civilizational legacy nurtured by Bosniacs.

Why did, unlike the antifascist Serbian intellectual and political elite, the nationalistic Serbian political and intellectual elite take unanimous and united position against the state Bosnia and Herzegovina, and aggressively and so loud stood against this Revision? The answer is very clear: they are aware of the fact that the Republic of Serbia, that is Serbia and Montenegro / Federal Republic of Yugoslavia, is internationally responsible, on various grounds and in various ways for the (committed) genocide, and for (all) punishable acts of genocide (all underlying acts of genocide), defined as such in the Convention on the Prevention and Punishment of the Crime of Genocide. This elite is well aware of the evidence and their existence, the evidence that is primarily in the possession of the most relevant institutions of the Republic of Serbia and the empiric sources – people: planners, organizers, participants, supporters, inciters, accomplices, and executers of the crime of genocide. The Republic of Serbia intentionally protects and conceals from the public, in an organized and planned manner, the key evidence pertaining to the committed genocide, particularly involvement of the Federal Republic of Yugoslavia / Serbia and Montenegro, the legal and natural persons that had the status of de iure and de facto organs of the Federal Republic of Yugoslavia in the commission of genocide, fearing the (establishment of) truth and criminal responsibility, and at the same time Serbia denies genocide against Bosniacs, minimizes the extent of crimes against humanity and international law, equals the genocide victims and genocide perpetrators, while declaring criminals the national heroes. The nationalistic Serb political and intellectual elite in Bosnia and Herzegovina (in the entity Republika Srpska) actively participates, to a large extent, in this project.

Numerous relevant documents, based on which the existing knowledge on the extent of genocide can be enriched, thus relevantly establish the international responsibility of Serbia for genocide in the Republic of Bosnia and Herzegovina are not yet available to the public. Unfortunately, the ICTY, according to Sir Geoffrey Nice, a well-known and respectable lawyer and university professor, (former) ICTY prosecutor, “has protected from April 2007 a large number of documents, and they still do keep them protected”. Genocide victims, even the genocide scholars, are not in a position to get access to these relevant documents. It is only possible to get access to these documents in a formal and legal process, through some activities of the legal representative, International Court of Justice, which rules on this dispute.

The process of Revision is a legal and moral, not the political matter, as persistently argued by the Presiding of the Bosnia and Herzegovina Presidency, Mr. Mladen Ivanić, and other participants in this joint project. Aimed at concealing facts surrounding the truth about the events in the Republic of Bosnia and Herzegovina at the end of the 20^th century, the deceit of domestic and international public, flagrant lies and propaganda, in line with the Ćosić’s statements about the role of lies and its functionality in the history of the Serbian society (“…, we lie creatively, with imagination, inventively … In this country, every lie becomes the truth”), they use various ways and means, qualifications and assessments, illustrated in the following statements: “new application would disrupt the stability of Bosnia and Herzegovina”; “it shall cause irreparable crisis within BiH, and also a serious regional crisis”; “initiation of the Revision will be unlawful and violent and it shall result in the biggest crisis in BiH after Dayton”; “this is the way to the disappearance of Bosnia and Herzegovina”; “it shall contribute to the deterioration of relations in Bosnia and Herzegovina”; “process of Revision would result in freezing the political relations between two countries” and many other provocative, aggressive, and threatening statements. In this way, so arrogantly and inappropriately, without any moral and/or political responsibility, they insult, harass, and kill once more the genocide victims, exert unseen pressure on scholars, particularly the representative (agent) of Bosnia and Herzegovina, Prof. Dr. Sakib Softić, as well as International Court of Justice, and additionally instill fear among citizens, provoke again, antagonize, and threaten with the new genocide.

The Applicant (Bosnia and Herzegovina) is entitled, according to the Statute of the International Court of Justice, to submit an application for Revision of the process if it discloses “some facts of conclusive relevance”, to be decided by the Court, which will also give (or already gave) the last word on the legitimacy and legality of the legal representative. It is therefore beyond comprehension such a hysteric behavior of the Serb politicians towards (potential) application for Revision. Mr. Ivanić and the like-minded, contrary to the virtue and manners of experienced and wise politicians, instead of deciding to bow to the genocide victims and move towards a better, joint future, they demonstrate the attitude of petty politicians, based on ideological and political reasons, and they still persistently and arrogantly argue that there is no new evidence, although they are fully aware of the fact that there is such evidence. They knowingly ignore, overlook, violate, “forget” and do not want to accept the moral credo according to which human beings (homo sapiens) cannot conceal the evidence surrounding genocide, cannot be neutral or indifferent, cannot keep silent, lie, or manipulate and fabricate.

Without entering the merits of (potential) Revision, the genocide victims and genocide scholars are aware of the truth and scientific findings related to the events in the Republic of Bosnia and Herzegovina at the end of the 20^th century, and thus we wish to remind the public only to some of the relevant:

- Federal Republic of Yugoslavia / Serbia and Montenegro waged the aggressive war against the Republic of Bosnia and Herzegovina – carried out armed operations aimed at implementation of a Nazi-style political project – setting up of a single Serbian state in the Balkans;

- Federal Republic of Yugoslavia / Serbia and Montenegro, with the INTENTION (mens rea) and clear plan and project, well designed and set goals and tasks, in accordance with the Serbian nationalistic ideology and politics, of a fascistic and genocidal character, planned, prepared, organized and participated in the commission of genocide in the Republic of Bosnia and Herzegovina – in all the occupied places, towns under siege and UN safe areas, which is additionally corroborated by the existence of mass graves, concentration camps, massive and individual rapes, destruction of civilian objects, particularly religious and residential, and other forms of crimes against humanity and international law;

- the state Federal Republic of Yugoslavia / Serbia and Montenegro, natural and legal persons with the status of de iure and de facto organs of the Federal Republic of Yugoslavia committed the underlying acts (actus reus) of genocide in the Republic Bosnia and Herzegovina;

- Federal Republic of Yugoslavia / Serbia and Montenegro je, being engaged in the aggressive wars in the Republic of Croatia and the Republic of Bosnia and Herzegovina and genocide against Bosniacs, according to the FRY President, Academic Dobrica Ćosić’s statement dated 27 May 1993, SUPPORTED “70,000 SOLDIERS IN THE ARMY OF REPUBLIC OF SERBIAN KRAJINA, AROUND 200,000 SOLDIERS IN THE REPUBLIKA SRPSKA ARMY AND YUGOSLAV ARMY, WHICH AMOUNTS ALMOST TO A HALF A MILLION OF SOLDIERS”;

- Federal Republic of Yugoslavia, by 30 August 1994 “SPENT TWO BILLION /American/ DOLLARS IN BOSNIA AND HERZEGOVINA” – for purpose of waging aggressive and war for territories in the Republic of Bosnia and Herzegovina and destruction of Bosniacs, while by 8 July 1994 “IT SPENT ONLY FOR AMMUNITION AND MILITARY EQUIPMENT FOR WARS IN RS AND RSK AROUND ONE BILLION AMERICAN DOLLARS (... AROUND 1,000,000 $);

- Federal Republic of Yugoslavia / Serbia and Montenegro set up in the Republic of Bosnia and Herzegovina a pseudo-state creation Serbian Republic of Bosnia and Herzegovina / Republika Srpska;

- pseudo-state creation Serbian Republic of Bosnia and Herzegovina / Republika Srpska acted in name for Federal Republic of Yugoslavia / Serbia and Montenegro – in the capacity of de iure and de facto organ and/or agent of the Federal Republic of Yugoslavia, that is with the authority and in name for the account of Federal Republic of Yugoslavia;

- pseudo-state creation Serbian Republic of Bosnia and Herzegovina / Republika Srpska was only a mere instrument of the Federal Republic of Yugoslavia, without any real, political and/or military independence, through which, in addition to other state authorities, the Federal Republic of Yugoslavia acted, while having overall (general) and effective control over the political and military leadership of this pseudo-state creation;

- pseudo-state creation Serbian Republic of Bosnia and Herzegovina / Republika Srpska is equaled with the organs of the Federal Republic of Yugoslavia and it was fully dependent on the Federal Republic of Yugoslavia, whose acts are attributed to the Federal Republic of Yugoslavia;

- political, military, and financial assistance, support, and resources which the Federal Republic of Yugoslavia / Serbia and Montenegro provided to the pseudo-state creation Serbian Republic of Bosnia and Herzegovina / Republika Srpska are the evidence that the crime of genocide committed in the Republic of Bosnia and Herzegovina, including the crime of genocide in the UN safe area Srebrenica and its area in July 1995 was committed by use of armed forces – direct involvement of manpower (JNA/Yugoslav Army, ”Army of the Serbian Republic of Bosnia and Herzegovina” / “Republika Srpska Army”, “Serbian Army of Krajina”, “National Defense of the Autonomous Province of Western Bosnia”, special units of the state security of the Republic of Serbia Ministry of Interior and other armed units and groups) and resources (armament, ammunition, fuel, equipment…) of the Federal Republic of Yugoslavia;

- Yugoslav Army officers, members of the 30^th Personnel Center of the Yugoslav Army Main Staff made the highest command structure of the “Republika Srpska Army”;

- Federal Republic of Yugoslavia sent, deployed, transferred, appointed and redeployed the leading officers of the Yugoslav Army, members of the 30^th Personnel Center of the Yugoslav Army Main Staff to the “Republika Srpska Army”, where they executed “tasks of control and protection of the territory of the Federal Republic of Yugoslavia and to that end participated on the ‘armed operations’ against the Republic of Bosnia and Herzegovina, whereby they are responsible, in addition to the crime against peace (aggression), also for the crime of genocide against Bosniacs;

- General Ratko Mladić, practically and essentially commander of the Main Staff of the 30^th Personnel Center of the Yugoslav Army Main Staff, formally the commander of the Main Staff of the “Republika Srpska Army”, who executed orders of the Yugoslav Army, that is Federal Republic of Yugoslavia, and all the officers of the 30^th Personnel Center of the Yugoslav Army Main Staff, as well as those form other units, commands, and institutions of the Yugoslav Army were, according to the internal legislation of the Federal Republic of Yugoslavia the officers – members of the Yugoslav Army, and de iure and de facto organs of the Federal Republic of Yugoslavia;

- all the members of the Main Staff of the “Republika Srpska Army” and many other officers, noncommissioned officers, and civilians at service in the “Republika Srpska Army” (in key positions within Corps, Brigades, Battalions, Companies, and at various levels of command in the “Republika Srpska Army”) were de iure and de facto members of the Yugoslav Army, that is they were organs of the state Federal Republic of Yugoslavia who in line with the Decision on determining tasks and territories in which the service is provided under aggravated (special) conditions, carried out tasks in the territory of the Republic of Bosnia and Herzegovina, which is defined as an integral part of the Federal Republic of Yugoslavia;

- with the intention to conceal political, military, economic, and other involvement of the Federal Republic of Yugoslavia in the aggression against the Republic of Bosnia and Herzegovina and genocide against Bosniacs, officers and other professional soldiers of the Federal Republic of Yugoslavia were concomitantly the formal officers of the “Republika Srpska Army”, and de iure and de facto officers of the Federal Republic of Yugoslavia;

- officers of the “Republika Srpska Army” were under the command of the Yugoslav Army, President of the Federal Republic of Yugoslavia, and they were subordinated to the state, political, and military leadership of the Federal Republic of Yugoslavia. They practically received orders from the Federal Republic of Yugoslavia, Yugoslav Army Main Staff, while formally from the pseudo-state creation Republika Srpska;

- officers of the “Republika Srpska Army”, that is the Yugoslav Army officers carried out the tasks in the name of the Federal Republic of Yugoslavia, and they represented the organs of the Federal Republic of Yugoslavia.