Finally, the post-Milošević era

Just some initial thoughts on the passing of Slobodan Milošević. First, it probably does not change the political situation in Serbia much. His influence had been declining since well before he left power, and as the independent activity of the groups he created indicates (for example, the murder of Zoran Đinđić a day short of three years ago, the continuing march of SRS through the institutions), very little depended on him.

The news is probably good news for Serbia, which will be hostage to one person fewer. It is also good news for SPS, which might now have the possibility (under the condition that it restructures meaningfully) to follow the example of the other parties in the region that once held a monopoly of power, and become a functional political party.

It is bad news for ICTY, for several reasons. One is that the detention facility will find it hard to escape a reputation for ineptitude. The main reason, though, is that the Tribunal will complete its activity without having completed its most important trial. The decisions which led to a frequently interrupted trial lasting years will be questioned far into the future, and will probably be used as a negative example for future tribunals.

The fact that a verdict will not be reached in the Milošević trial is bad news for everybody.

Finally, while anybody's death is a cause for regret, what is to be regretted most about Milošević is that during his life, he was able to take so many other people down with him.

Waiting for details on Milošević death

Other agencies are beginning to report the news of the death of Milošević: BBC, AP . There are no reports yet of the causes, but B92 reports that they expect a report from ICTY in about a half hour.

No details or confirmation

B92 is reporting that Slobodan Milošević has died.


The ICJ genocide trial, 3: Does the court have jurisdiction?

The outcome of the case may turn on the technical question of whether ICJ has the authority to try the charges at all. Remember that the parties to the suit (as it now stands) are two countries: Bosnia and Hercegovina is the plaintiff, and the State Union of Serbia and Montenegro is the respondent. Neither of these states existed in the form they exist now when the lawsuit was filed in 1993. Bosnia and Hercegovina in its present form, as a federal republic made up of two entities, was established by the Dayton Accords in 1995. Serbia and Montenegro came into existence with the agreement of the Constitutional Charter in 2003. The question of the authority of the court depends in large measure on whether the two presently existing states claim, or can be compelled by law to assume, successor status with the states that existed in 1993. There is a further question of whether the states that are currently parties to the suit actually represent the parties to the conflict at the time the suit was filed.

One of the strongest potential legal arguments was presented for the defence by Tibor Varady (this was a strategy that Mr Varady announced well in advance). He argued that since ICJ had declared in 2004 that it did not have jurisdiction in the suit filed by SRJ against NATO regarding the 1999 bombing campaign (SRJ charged the NATO countries with genocide, which would seem to weaken SCG advocate Stojanović's argument for a narrow application of the definition of genocide), it could not have jurisdiction in this case. What ICJ found in 2004 was that since SRJ was not a member of the United Nations at the time that it filed the suit (it was admitted to membership on 1 November 2000), it did not have standing to file a suit before ICJ. Mr Varady argues that the court should apply the same standard to all cases involving SRJ between 1992 and 2000.

There are some problems with the argument. The first is that in a separate decision in 2003, ICJ specifically excluded this argument. The second is that Article 9 of the Genocide Convention specifically names the ICJ as the venue for disputes over genocide (Why then did it decline to hear the case gainst NATO? Although formally ICJ did not rule on the merits of the case, this may have been a roundabout way of finding that it was clearly not a genocide case). It might be argued that a double standard is at work here, but if so it is a standard that argues that a state must be a party to the ICJ statute in order to initiate proceedings, but not in order to be held to the law. However, it seems as though there is enough vagueness in the rules that there may still be a window through which Mr Varady's argument might be accepted.

Then there is the question of succession: is today's state of SCG the same as the state of SRJ which was sued in 1993? Mr Stojanović argued that crimes were committed by a regime which was neither democratic nor representative, and added that it was more appropriate that individuals be tried for these crimes before ICTY and national courts than for a state to be called to respond. However, this argument runs counter to an established practice by which governments inherit the obligations of their predecessors (which is why a democratic Germany which has nothing in common with the Nazi regime continues to compensate victims of the Nazis, and a modern Turkish state finds itself repeatedly drawn into polemics over the genocide of Armenians by the Ottoman Empire).

Another question of succession has been raised obliquely by the defence, in the argument by counsel Saša Obradović. He pointed to the 24,216 victims of Serb nationality in Bosnia-Hercegovina identified by the Research and Documentation Center, and asked whether they were being represented by the plaintiff's attorneys. Mr Obradović failed to argue for the importance of this point, so I will do it for him: to the degree that he points to victims of more than one nationality, the argument calls into question whether there was a targeted "group" as required by Article 2 of the Genocide Convention, and to the degree that he points to military as well as civilian casualties in BH, the argument raises the question of whether the events can be qualified as genocide or civil war. If somebody bothers to make the argument, which is based on the multiethnicity of perpetrators and victims, it might be the strongest point that can be made against the applicability of the Genocide Convention. Though as I have argued before, this strategy amounts to denying genocide by admitting to crimes against humanity.

I am not sure that I can predict how the ICJ is likely to rule on the question of its own jurisdiction (in any case, I do not have to make a prediction -- we will find out soon enough). In a sort of enigmatic interview, presiding judge Rosalyn Higgins gave a fairly loose interpretation of how much she thinks the court is bound by precedent. My feeling is that after so many years, and given the inconsistency of the arguments offered by SCG, the judges will feel obligated to decide on the merits on the case. If so, that will mean that they cannot avoid setting a major precedent related to the legal definition of genocide.

The ICJ genocide trial, 2: Was there a policy?

There is certainly a lot to be added to the first installment, on the question of whether genocide took place, and I invite people to take up the question in the comments (for the sake of people who might be looking this up in the future, I will ask people to be sure that their comment gets posted to the topic to which it pertains). For now, I want to take up the next question, which is whether genocide, if it is shown to have occurred, was the result of policy on the part of SRJ.

In a way, the question is at least a little bit circular: the "intent" provision of the Genocide Convention is most often interpreted as meaning that there cannot be a genocide without a policy. But there are two problems that immediately come forward here:

1) Even where a policy exists, it is very rare that this policy is stated in a conventional way that allows for documentation. The documentation of the Wannsee Conference (1942), for example, while it is usually taken as evidence of the announcement by the Nazis of the "Final Solution," is in fact vague on the question of what, other than deportation, this "solution" would entail (and its report was not a published document). Even the centrality of the Wannsee Conference is disputed: Christian Gerlach, for example, argues that a recently found document is more determinative and sets an earlier date. I am not about to resolve this historians' dispute -- what I want to point out out is that the dispute indicates a problem, which is that decisions to commit genocide do not lend themselves to documentation and publicity. The Nazi case takes place in the context of a regime which was sure of its power at the time and held closely to bureaucratic form, conditions which do not apply to the states of the former Yugoslavia. Even in Rwanda, where there is plentiful evidence of intent, this evidence takes the form of media material. There are no parliamentary resolutions or (written) executive decrees. So any evidence related to the existence of a policy has to be indirect.

2) To the extent that a policy can be said to have existed, there remains the question of whose policy it was. In the strictest bureaucratic sense, Serbia and the Serb parastate in Bosnia-Hercegovina were separate entities. To further complicate the matter, many of the worst atrocities were carried out by paramilitary groups (White Eagles, Tigers, Scorpions, and other critters) which had no legal status. The core of the case presented by the BiH advocates lies in demonstrating the ways in which all of these elements were connected. These are all facts that, in the parlance, "everybody knows," but that sort of qualification does not necessarily reach the required standard of legal proof. Alain Pellet of the BiH legal team himself raised the possibility that SRJ may have been "merely" an accomplice rather than a direct participant with intent in the genocide. But he raised this possibility more or less as a null hypothesis, in the process of attempting to show that the military and police forces of RS were "totally dependent on SRJ and have to be considered as organs of SRJ." Here, too, the evidence has to be indirect: the strategy depends on showing logistical, command and financial links between SRJ institutions and perpetrators.

Demonstrating links was the central concern of BiH attorney Magda Karagianakis, who spoke of the role of the Serbian interior ministry in training, arming and commanding the RS military (VRS) and paramilitaries. One well known example was broadcast to great publicity last year: the video recording showing prisoners who had been taken by the military being executed by members of a paramiltary unit. In addition to evidence from the plaintiffs' attorneys showing that VRS was financed directly by the regime in Belgrade, there remains Slobodan Milošević's interesting complaint at the time of his initial arrest, in which he denied that he had taken money missing from the state budget for personal or party use, claiming instead:
"As for the resources spent for weapons, ammunition and other needs of the Army of Republika Srpska and of Republika Srpske Krajine, those tasks for reasons of state, as a state secret, could not be shown in the budget, which is a public document. The same applies to appropriations for the supply of security forces, and especially the special antiterrorist forces --"from needles to locomotives" -- from light weaponry and equipment to helicopters and other resources which remain in place, and which were not revealed to the public for reasons of state secrecy."
Similarly, the ongoing financial relations between the legal military and Ratko Mladić raises the issue of how close the informal contacts between institutions were, as do more recent revelations of the connections between state security and paramilitary groups. These sorts of statements and findings do not offer a high level of precision, but a lot of them cumulatively contribute to an argument that a variety of forces operated with a shared goal, and with some level of coordination.

The defence has a number of potential answers to arguments along these lines. One would be that in a war atmosphere characterised by general criminality and confusion, chains of command did not function (a similar argument is offered by Kosta Čavoški on behalf of Radovan Karadžić, but it will not help in this case -- he tries to shift blame to Milošević by way of Mladić). Another would be that the interior ministry and its forces represented rogue elements not controlled by state policy, but this argument faces the problem of finding more rogue than nonrogue elements as it develops the theory. On his first day of presentation, SCG advocate Radoslav Stojanović argued for a separation between the actions of the Milošević regime and the interests of the state and its citizens. This argument may have considerable political validity but it is not clear that it can translate to a legal argument.

My assessment would be that if ICJ finds that genocide took place, it will be hard for them not to find also that there existed a policy in which SRJ was engaged.


The ICJ genocide trial, 1: Did genocide occur?

There are several competing definitions of genocide in the academic literature. The term originates with the work of the lawyer Raphael Lemkin, who had the Nazi genocide specifically in mind when he developed the concept. He intended, however, both to account for similar historical experiences of which he was aware (the Armenian genocide, for example), and to produce a concept exhaustive enough to serve as a basis for prevention (Lemkin includes in his work sections on "cultural genocide," "religious genocide" and "moral genocide," for example). His broad definition sees genocide as directed toward:
"disintegration of the political and social institutions, of culture, language, national feelings, religion, and the economic existence of national groups, and the destruction of the personal security, liberty, health, dignity, and even the lives of the individuals belonging to such groups" (R. Lemkin, "Genocide," in A.L. Hinton [ed.], Genocide: An Anthropological Reader. Oxford and Malden: Blackwell, 2002, p. 27).
One of the results of Lemkin's engagement was the passage by the United Nations of the Convention on the Prevention and Punishment of the Crime of Genocide (popularly, the "Genocide Convention") in 1948. After considerable debate, the UN General Assembly opted for a definition which would exclude the categories of "cultural," "religious" and "moral" genocide, and which concentrated on physical destruction of people instead. The UN definition also narrowed the potential categories of victims, excluding, for example, political groups. The relevant part of the definition is in Article 2:
In the present Convention, genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:

(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.
The UN definition is the topic of a good deal of legitimate controversy, mostly because of what it excludes -- but it is the only legal definition that exists in international law, and so it is the one that has to be used. Large scale killings which fall outside of the definition can be treated a number of ways. Some researchers have proposed definitions like "democide" and "politicide," which might be useful analytically but are not legal terms. One legal term which may apply to serious cases outside the scope of the Genocide Convention is "crimes against humanity," which the Nuremberg Charter (1945) defined as including "murder, extermination, enslavement, deportation, and other inhumane acts committed against civilian populations." The most current definition of "crimes against humanity" is in the Rome Statute of the International Criminal Court, where Article 7 paragraph 1 enumerates:
1. For the purpose of this Statute, "crime against humanity" means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack:

(a) Murder;
(b) Extermination;
(c) Enslavement;
(d) Deportation or forcible transfer of population;
(e) Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law;
(f) Torture;
(g) Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity;
(h) Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court;
(i) Enforced disappearance of persons;
(j) The crime of apartheid;
(k) Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.
I have not included paragraphs 2 and 3, which clarify terms in paragraph 1, but you can find those yourselves by following the link. One legitimate question that might be asked could be whether the distinction between "crimes against humanity" and "genocide" is all that important, since there is considerable overlap between the two. I am inclined to think that the distinction is on the one hand symbolic, like the difference between labelling a crime "really really bad" and "really really really bad," and that on the other hand it is related to political issues, as there is a greater moral claim associated with the status of being a victim of genocide. But I have no doubt that a great number of lawyers and human rights activists will disagree with me on this point (which they are certainly welcome to do).

All of this may seem like a huge digression, but it comes down to this: no reasonable person denies that a lot of murdering was carried out in Bosnia-Hercegovina, and that a majority of the victims were from one ethnic group. What is in dispute is whether this can be legally defined as genocide, or as something else.

The debate is going to turn in large measure on interpretations of legal terms. In particular, it will turn on the question of whether there was an "intent to destroy" a group, and on how big a "part" has to be to meet the standard of "in whole or in part." The requirement of "intent" means that the plaintiffs have to show that destruction was a matter of policy, while the defendants will argue that destruction was a consequence of a particularly nasty war. Numbers or scale may not be so important: the first criminal conviction to be handed down by an international tribunal on charges of genocide (in 1998) was against a Rwandan mayor, Jean-Paul Akayesu. Convictions against national officials came later. The precedent would seem to suggest that destruction on a national or international scale, as occurred in the Nazi genocide, is not necessary in order for a finding of genocide to be made.

For an idea of why this matters, it might be useful to recall a famous example of evasion: this exchange took place between journalist Alan Elsner and State Department spokeswoman Christine Shelly during the Rwandan genocide on 10 June 1994:
Q How would you describe the events taking place in Rwanda?

MS. SHELLY: Based on the evidence we have seen from observations on the ground, we have every reason to believe that acts of genocide have occurred in Rwanda.

Q What's the difference between "acts of genocide" and "genocide?"

MS. SHELLY: As you know, there is a legal definition of this. There has been a lot of discussion about how the definition applies under the definition of "genocide" contained in the 1948 convention. If you're looking at that for your determination about genocide, clearly, not all of the killings that have taken place in Rwanda are killings to which you might apply that label.

Some of the difficulties over actually arriving at a definition of "genocide" and formulations on genocide are the reasons why -- particularly, in late May, the U.N. Human Rights Commission, with the very strong support by the United States, appointed a Special Rapporteur for Rwanda, specifically to compile the information on possible violations of human rights and on acts which constitute breaches of international humanitarian law and crimes against humanity, including acts of genocide.

His preliminary report, which is due later this month, will provide the additional information about the human rights violations -- the types, and presumably how they might be characterized -- and that is something that we have to wait for.

As to the distinctions between the words, we're trying to call. What we have seen so far, as best as we can, and based, again, on the evidence, we have every reason to believe that acts of genocide have occurred.

Q How many acts of genocide does it take to make genocide?

MS. SHELLY: Alan, that's just not a question that I'm in a position to answer.

Q Well, is it true that you have specific guidance not to use the word "genocide" in isolation but always to preface it with these words "acts of"?

MS. SHELLY: I have guidance which I try to use as best as I can. There are formulations that we are using that we are trying to be consistent of our use of. I don't have an absolute categorical prescription against something, but I have the definitions. I have phraseology which has been carefully examined and arrived at as best as we can apply to exactly the situation and the actions which have taken place.
Thomas Franck of the BiH legal team has put the argument that the events amount to genocide in terms of a thesis that the type and scale of crimes, as well as the similarity of several events to one another, are evidence that what occurred was not a set of isolated incidents but a part of a strategic plan (for which there exists indirect evidence -- more on this in the following post). It is not yet clear how SCG representatives will argue against the applicability of the Genocide Convention. So far they are off to a weak start, arguing that the numbers and descriptions in the complaint by BiH are exaggerated. If they want to confront the arguments presented by the plaintiffs so far, they will have to present a position on the questions of organization and intent.

The ICJ genocide trial: Introductory notes

There would seem to be two issues that really matter in the dispute between Bosnia-Hercegovina and Serbia and Montenegro which is currently being heard by the International Court of Justice (ICJ). These are:
1) Did genocide occur in Bosnia-Hercegovina?, and
2) If there was genocide, was it a result of policy on the part of the Federal Republic of Yugoslavia (SRJ)?
Then there is a third question which, while it is of interest primarily to lawyers of a certain type, may determine the outcome of the proceedings, which is:
3) Does the court have the authority to try the case?
Then there is a question which is not a legal one at all, but might be the one that is most interesting to people following the case, which is:
4) What would be the political consequences of a guilty verdict?
I doubt very much that I can give definitive answers to any of these four questions, but I think I can try to give a picture of some of the issues that will have to be considered along the way to an answer. First, an observation -- the issues at stake are at bottom political issues, and judicial institutions do not necessarily provide the best forum for political issues to be resolved. However, when there is a lack of will on the part of political institutions, this may be the only forum available. In that context, I feel confident in making a prediction: no matter what the outcome, very few people will be satisfied.

Having said that, let me see whether I can shed any light on the questions, one by one. I will be posting short essays related to each of the questions in a series of four posts. A word of caution: although I do own a briefcase, I am not a lawyer. Merely a talented amateur, like Emma Peel.


While I was away

For anyone who makes the mistake of getting their news from this site, here are a few of the interesting things that happened while I was away.

There was talk that Jasmila Žbanić's award-winning film Grbavica, about violence against women during the war in Bosnia-Hercegovina, would not be shown or well received in Serbia. In fact, it was shown to a capacity audience in Sava Centar, who kicked out the far-right provocateurs and gave the director and cast a hearty ovation. Whether the film would get a similar reception in Banja Luka remains open to question, since distributors refuse to bring it there.

The convicted war criminal Milan Babić committed suicide in prison. No sane person will miss him, but his death presents problems for the prosecution in cases where his testimony would have been useful, and raises problems once again for the prison management in Scheveningen, which has failed to secure the people for whom it has responsibility before. The departure of Ali Farka Toure, in contrast, is a loss for lovers of beauty everywhere.

A court in Niš acquitted bishop Pahomije (Tomislav Gačić), who is guilty, on charges of sexual abuse of children. Prosecutors promise to bring the case to a higher court.

There was far better religious news in Bujanovac, where the local Orthodox eparchate and the local Islamic community are joining forces to, in the words of muftija Nedžmedin Saćipi, "be a true bridge between Serbia and Kosovo. The lessons we have learned obligate the Serbs, Albanians and Roma of this place to be in the service of peace, to be a model of cooperation for people of good will."

There are several other ongoing stories, including the ICJ case between Bosnia-Herecegovina and Serbia, on which I will have some comment. I'll also share some impressions of lovely Tbilisi, where I got the hat that Azra is wearing to school today.

The Earth is getting younger, and my clothing smaller

Came across this job announcement today at the Chronicle of Higher Education, from Mr Falwell's school:
Biology: Liberty University invites applications for: Faculty member with Ph.D. and compatibility with a young-earth creationist philosophy. Teaching expertise in Microbiology and supervision of undergraduate research expected. Experience in molecular genetics helpful. Send letter of interest, resume, and statement of personal Christian faith commitment to [contact info omitted].
They require the same compatibility for their position in physiology but not, interestingly enough, for their position in chemistry. I do not know whether "a young-earth creationist philosophy" is compatible with what has been called "intelligent design." But I have been looking for a forum from which to promote my theory: "Italian design," which argues that people look fantastic, but are engineered in such a way that they require constant and intensive maintenance.