Bosniaks Still Seek Serbia Genocide Conviction

And a German court ruling in a genocide case might help them achieve that.

By Edina Becirevic in Sarajevo (TU No 537, 8-Feb-08)

A year has passed since the International Court of Justice, ICJ, decided Serbia was not guilty of genocide in Bosnia, and survivors angry about the ruling have sought new ways of obtaining justice.

The court ruled that Serbia bore no direct responsibility for what happened in Bosnia in 1992-5, and decided that the only specific crime that merited the name of genocide was the murder of 8,000 Bosniak men and boys in Srebrenica.

Serbia was found guilty of no more than failing to prevent or punish perpetrators of this crime. Other crimes committed against Bosniaks in the conflict were classified as just "ethnic cleansing".

That was not nearly enough for civilians who lost their loved ones in massacres perpetrated mainly by Serbs.

While survivors' groups were disappointed with the ICJ ruling, they have been delighted at some of the results they have achieved in other jurisdictions.

German courts, perhaps unsurprisingly, have proved particularly effective.

Three Bosnian Serbs have been convicted in Germany on charges of genocide since the end of the war in Bosnia, among them Nikola Jorgic, a Bosnian Serb, who was sentenced to life imprisonment for crimes he committed in the town of Doboj in June 1992.

Jorgic was the leader of a paramilitary group that took part in the killings and torture of dozens of Bosniaks in the Doboj area, and the German court held him responsible for 11 counts of genocide.

Jorgic appealed unsuccessfully to the German federal court in 1999, and then to the European Court of Human Rights, ECHR.

In July 2007, the judges in Strasbourg not only upheld the German sentence but also the German court's right to convict him.

Many experts say this verdict is important, not only for establishing the universal jurisdiction of genocide, but for setting the record straight with regard to crimes committed in Bosnia.

Professor Robert Donia, an expert witness in a number of trials at the International Criminal Tribunal for the Former Yugoslavia, ICTY, said the ECHR's ruling in the Jorgic case confirmed the views of many observers and almost all surviving victims.

They think the Serb soldiers and paramilitaries committed genocide against Bosniaks in Bosnia during 1992, in addition to their genocide at Srebrenica in 1995.

"We live in an era of judicial pluralism, with various judicial bodies vying to establish standards and define crimes under international law. Both the International Court of Justice and the ICTY, relying on narrower definitions of genocide, have failed to find either the governments of Yugoslavia and Serbia, or individual perpetrators, guilty of genocide in that year [1992]," he said.

For Donia, the key part of the ECHR verdict was that the judges backed the German ruling in the Jorgic case that genocide was more than just the physical destruction of a group, but included the destruction of a group "as a social unit".

Jorgic's sentence could also be important for the War Crimes Chambers in Bosnia, which has been reluctant to include genocide charges in indictments not related to Srebrenica.

The principle of "judicial pluralism" embodied in the ECHR could spill over into domestic courts in Bosnia when processing crimes committed by the Serbs.

More importantly, the principle could oblige the ICJ to re-examine its stance, since the ICJ's regulations allow for the revision of a process if new evidence appears which could significantly affect the previous ruling.

Although it currently looks unlikely that the genocide verdict would be changed, contrary rulings by other courts could alter that.

This means that the Jorgic case - together with the possibility of opening the archives of Serbia's Supreme Defence Council, which allegedly contain ultimate proof of Serbian involvement in genocide - could prove to be a key argument towards revising the court's decision.

However, even if the ICJ judgment remains unchanged, the ECHR's ruling that genocide took place in 1992 could be used to prosecute genocide-denial, which is currently being criminalised in a number of EU states.

Edina Becirevic is senior lecturer at the University of Sarajevo's Faculty of Criminal Justice Sciences