LOCAL PRESS
UN Security Council to hold session on situation in Kosovo on Friday (Tanjug)
The UN Security Council will on Friday hold a session devoted to Kosovo to consider the latest report by UN Secretary-General Ban Ki-moon, and Serbia’s views will be presented by First Deputy Prime Minister and Foreign Minister Ivica Dacic.
In his regular quarterly report on the work of UNMIK, Ban called upon the Kosovo authorities to speed up the establishment of a Specialist Court for war crimes and to redouble their efforts to ensure a stronger public consensus around this issue.
Djuric: Decision on participation in Kosovo institutions after Brussels (RTS/Tanjug)
The decision on further participation of Serb representatives in the Kosovo institutions will be passed next week, after the meeting in Brussels, said the Head of the Office for Kosovo and Metohija Marko Djuric, who met, together with Serbian Prime Minister Aleksandar Vucic, with the Kosovo Serb representatives. Djuric told the press after the meeting that all future steps will be made jointly and in the interest of the Serb people. According to him, the next meeting will be attended by provincial ministers, mayors and Serb representatives in the Kosovo institutions, as well as Prime Minister Vucic. Djuric said that the dismissal of the Serb Minister in the Kosovo government Aleksandar Jablanovic was a unilateral move that hinders the resumption of the dialogue in Brussels. He pointed out that the Serbian government, as well as all Serb representatives in the provincial institutions, thinks that Jablanovic didn’t do anything bad and that they don’t accept the responsibility for increasing tensions in the province. Djuric stressed that the Serb (Srpska) List is not a source of instability but contributes to building relations and normalization in the province. Deputy Prime Minister in the Kosovo government Branimir Stojanovic and the Minister of Local Self-Administration in the Kosovo government Ljubomir Maric, as well as the dismissed minister Jablanovic, talked today with Prime Minister Vucic and Djuric. The Serb List representatives didn’t attend the Kosovo Assembly session today.
Serbian-American sparks (Politika/FoNet)
Speaking about the report of the Fund for Humanitarian Law (FHP), which states that the soldiers of the 37th Motorized Brigade, whose commander was the present Chief of the General Staff of the Serbian Army Ljubisa Dikovic, took part in the murder of Albanian civilians in Kosovo in 1999, US Deputy Assistant Secretary of State in the Bureau of Democracy, Human Rights and Labor Thomas Melia told FoNet that at issue is an “important reference point”. “We hope the Serbian government will take the report very seriously,” stressed Melia. “I didn’t have the opportunity to read the report, but we know that the FHP is a respected organization with a very good reputation,” said Melia who visited Belgrade at the beginning of this week. “That is why I know that the job of independent centers is to ask tedious or difficult questions. I also know now that the job of the authorities is to listen to the information and use them for passing decisions important for improving the work of the government,” stressed Melia. “We also see this with the FHP and the Balkan Investigative Reporting Network (BIRN). Serbia should be happy for having such organizations and I hope that, after the initial hasty reactions, government officials will take them seriously,” said Melia. He said that he had talked in Belgrade with Serbian Interior Minister Nebojsa Stefanovic and noted that Washington is not satisfied with the results of the investigation on the burning of the US Embassy in Serbia in 2008 and on the murder in 1999 of the three US citizens – brothers Agron, Mehmet and Ilij Bytyci. “We are not satisfied with the results of the investigation on the burning of the embassy since it has not been completed yet, but we continue to cooperate with the Serbian government, where they are assuring us that progress has been achieved,” stressed Melia. As regards the murder of the Bytyci brothers, Melia said: “We are not satisfied with the results of the investigation because we haven’t seen the results of the investigation.” Melia expressed satisfaction over the fact that Serbia is chairing the OSCE this year and assessed that this is “a real opportunity for Belgrade to play an important role”. Melia pointed out that it would be important for Serbia to continue what Switzerland had been doing last year as the OSCE chair and to maintain the climate where all interested parties are gathering and talking. Along with the assessment that “the Russian role in Ukraine is very important and wrong”, Melia voiced hope that other governments would join the US “in applying certain pressure that will influence Russia to pass better decisions”. Serbia is not an EU member, its government should pass sovereign decisions in its interest, said Melia, and stressed that the US continues to respect Serbia’s right to pass decisions.
Germany not hindering Serbia on its EU path (Tanjug)
Germany is not hindering Serbia on its European integration path but it still insists on respect of fundamental enlargement process principles. This is according to German politician and European Parliament Rapporteur for Serbia David McAllister. “As a member of the European Parliament I cannot speak on behalf of the German government but I am familiar with the stand of Chancellor Angela Merkel who has recognized the importance of Serbia for the European perspective of the Western Balkans and reiterated on several occasions that she wishes the entire region to be integrated into the EU,” McAllister said addressing an international conference on Serbia which was taking place at the Goethe Institute in Brussels. The fundamental principles are embodied in the judiciary reform, public administration reform and structural reforms of the economy, McAllister said and added that he expects the first chapters in the accession talks to open soon. He recalled that the German parliament adopted a resolution in 2014 which calls for opening Chapter 35 on the process of normalization of Belgrade-Pristina relations as one of the first chapters in the accession talks. “This does not mean that the chapter has to open first, it just means that it needs to be one of the first chapters to open in the talks,” McAllister explained. He underscored that a new round of the high-level Belgrade-Pristina dialogue, scheduled for February 9, would bear key importance for the timing of chapter opening. The rapporteur said that he knows great expectations should not be nurtured because new delegation heads would meet for the first time on this occasion, but he expressed the hope that a significant progress in this round could accelerate the opening of chapters. McAllister announced that he would visit Serbia in mid-February to meet with top government officials and visit areas hit by the devastating floods in 2014. He stated that he is aware of the fact that many German voters are against the EU enlargement process, but he noted that the public is often not aware of the scope of contribution of such a process to the Union’s stabilization and economic progress.
Ambassador Kirby: We recognize Kosovo as an independent state, and we encourage others to recognize it (NIN, by Antonela Riha)
“We are not an EU member but we are listening to what others are saying. The main prerequisite is the fulfillment of the agreed decrees of the Brussels agreement from April 2013, and some of them have not yet been fulfilled. Hereto, the consent of all 28 members is required for the opening of chapters. That is why you should listen to what each member says.”
How do you assess the results of the Belgrade-Pristina dialogue so far?
“It is necessary for both sides to be prepared in the dialogue, to have the will and to be capable of passing decisions. Even though decisions cannot be passed in the course of the negotiations on the government formation, this is no excuse for some things not been done, since the already agreed things could have been implemented. Of course, some issues are complicated, for example how the judiciary will look like.”
The situation regarding the ownership over the property in Kosovo has become very tense lately, especially in the case of Trepca.
“There has been a proposal, the court passed a decision. The Kosovo Privatization Agency didn’t proceed according to the court order that looked for a solution. The Kosovo government proposed one of the possible solutions. It is good that talks on this topic have been launched. The ambassadors of the Quint were invited so the government would present its position. They told us at the meeting, which was attended by Marko Djuric, Zeljko Sertic, Aleksandar Vulin and Aleksandar Antic, that they would like to see an amendment in the law. We discussed this with our colleagues later on, and one of the Serb members of the government cabinet in Pristina also talked with Prime Minister Isa Mustafa.”
Pristina continues to claim that Trepca is Kosovo’s and Belgrade claims it is Serbia’s.
“The issue of property is very important, but in order to achieve progress in the EU integration, first you need to complete what you had started, and then to enter something new. The issue of property is not only an issue of wealth, because the Trepca mine has debts of nearly one billion Dollars, which nobody wants. On the other side, there are 3,800 people on the Serbian side who are receiving salaries and more than 1,000 people on the Kosovo side. It seems that the solution of this problem is being postponed for 30 months, and I don’t think that anyone here wishes to postpone the opening of new chapters in the negotiations with the EU for 30 months.”
What do you expect as the final outcome of the Pristina-Belgrade dialogue? Many claim that this is independence of Kosovo.
“In October 2012 I was present when Hillary Clinton and Catherine Ashton talked in Belgrade with Serbian President Nikolic and Prime Minister Dacic about normalization of relations between Serbia and Kosovo. The term ‘recognition of Kosovo’ was not used at the time and this hasn’t changed. However, no one didn’t take a dictionary and defined what the word normalization means. The real meaning of the normalization of relations ‘hangs in the air’. Yet, before opening the normalization process, talks between the Serbian and Kosovo prime ministers would have been a surprise, but today this is normal.”
Do you expect that it will be normal some day for Serbia to say that it is fine for Kosovo to have a place in the United Nations? Are there pressures on Serbia?
“I cannot foresee what Serbia will do. I have never gone to some Serbian official and told him/her: you must recognize Kosovo. I tell them that we recognize Kosovo as an independent state, that many others have done so and that we encourage others to recognize it, but we are not asking you this since we know it is too difficult at this moment.”
How do you assess part of the EP Rapporteur for Serbia David McAllister’s report where it mentions the issues of foreign policy and relationship with Russia?
“My opinion is that Russia must not get away with the seizure of Crimea. Modern world must not resemble a place where someone simply grabs someone else’s territory. I am glad that Serbia officially supports the territorial integrity of Ukraine and that it considers Crimea to be part of Ukraine.”
REGIONAL PRESS
CIK certified candidates for the President and Vice-Presidents of the FB&H (Srna)
The Central Election Commission (CIK) of Bosnia and Herzegovina (B&H) has certified the candidacy of Marinko Cavar for a position of the President of the Federation of B&H (FB&H) and Melika Mahmutbegovic and Milan Dunovica for positions of the Vice-Presidents from among the Bosniak and Serb peoples. The CIK has verified a joint list of candidates from the Bosniak Club, Croat Club and five delegates from the Serb Club in the House of Peoples of the FB&H, for positions of the President and Vice Presidents of FB&H. Upon receipt of this decision by the CIK, there is a possibility of an appeal within two days to the Appellate Chamber of the Court. The CIK has determined the termination of the mandate for Halid Genjac (SDA) as a deputy in the House of Representatives of the Parliamentary Assembly of B&H, because he was elected a delegate to the House of Peoples of the Parliamentary Assembly of B&H, and he will be replaced by Hazim Rancic (SDA). The termination of the mandate for Sead Kadic (SDA) has been determined in the House of Representatives of the FB&H Parliament, since he was elected a delegate to the House of Peoples of the Parliamentary Assembly of B&H, and he will be replaced by Asim Kamber (SDA). The CIK has determined the termination of the mandate for the MP Slobodan Jankovic from New Socialist Party in the Municipal Assembly of Foca, and he will be replaced by Dalibor Milanovic from the same political party.
Dodik with the EU Ambassadors in B&H has supported the new initiative for B&H (Srna)
The RS President Milorad Dodik, today in Banja Luka, at a working lunch with the ambassadors of EU member states accredited in B&H, reiterated the RS accepts a new initiative of the EU for B&H. Dodik and the ambassadors discussed issues related to European integration, with special emphasis on the last initiative of the EU, which should enable faster movement of B&H towards the EU. The President informed the Ambassadors of EU member states on the preparations for the adoption of 30 laws in the field of economy and social protection, which would be a practical response of RS to the recommendations of the EU, announced the office of the President of the RS. They have also exchanged views on other current issues in the RS and B&H.
Covic receives Turkish ambassador (Oslobodjenje)
Dragan Covic, Croat member of the B&H Presidency, welcomed a visit from Cihad Erginay, Ambassador of Turkey to B&H. The Turkish Ambassador congratulated Covic on his election as a member of the B&H Presidency from the Croat people. They jointly considered that the two countries have good relations. The B&H Presidency member informed the Turkish ambassador of current issues in B&H, with special emphasis on the process of European integration and the necessity of including all levels of government in the process, in accordance with constitutional responsibilities. They discussed the recently adopted statement by the B&H Presidency in the process of European integration, and noted that the statement contributed visible progress by B&H in relation to the EU. The meeting concluded that B&H’s good cooperation with Turkey should continue in the future, the B&H Presidency said in a statement.
US Embassy’s comment on law based on someone else’s stance (Srna)
The Republika Srpska (RS) Prime Minister Zeljka Cvijanovic is of the opinion that the US Embassy has not even read the law and order bill, and that its comments on the bill are based on someone else’s stance. “I think that they have not read the bill at all and that they comment on the basis of the stances of others, the others who arbitrarily, or intentionally, decided that they are considered relevant,” said Cvijanovic upon being asked by Srna to comment on the press release of US Embassy to B&H, expressing concern over the law and order bill that, as they claim, constitutes a “direct challenge to the fundamental human right to freedom of expression”.
Gruevski was dictator at the head of arrogant government (Kurir.mk)
Despite the turbulent post-election period in Greece, criminal charges for the opposition leader, for third day it is one of the top topics at the southern neighbor media. Almost no newspaper and internet portal allocated significant space for this topic as in the comments still dominate heavily criticism for the Prime Minister Gruevski, and defense for Zoran Zaev. Gruevski is dictator who dreamed of Macedonism and his Government was arrogant – portal Defense point is one of those which do not spares words in a try to marginalize the case Putsch. Greek portal reveals that according to reports from the FYROM media there is suspicion that Greece is behind the action of Zaev, and for this and everything else, they accuse the Prime Minister Gruevski. “The current Prime Minister Nikola Gruevski, devoted to the arrogance and with clear intention to push the FY Republic of Macedonia in the uncontrolled and dangerous nationalism, does not hesitate in accusations against Greece,” it is said a commentary of the Greek nationalist portal.
They yesterday came up with comment that Gruevski is behaving like dictator, and has persecuted his political opponent. Apart from portal Defense point, with comments in relation to marginalize the case Putsch through attack on Gruevski and defense for Zaev came up the Greek version of the portal EurActiv, online magazine Diplomacy and Strategy Via Diplomacy and website news OnAlert. They commented that the persecution of Zaev is allegedly endangering the security of the country, that the spy affair was wrapped in conspiracy theories, and that the West apparently is not accepting the arguments of FYROM Prime Minister. Southern neighbor and SDSM were similar line in the attempt to marginalize the spy affair. For this spy affair, Greek government sources for Kathimerini claimed that it was manufactured by the FYROM government, and as arguments in favor of this assertion, the newspaper quoted almost identical position of SDSM. Interesting synchronization existed during the period when SDSM did the incidents before Parliament more than two years. Then, the source from the Greek Ministry of Foreign Affairs briefed Greek media that have strategy for successful dealing with the issue of Macedonia at the international scene, and that the first point from this strategy is the internal political situation in FYROM.
INTERNATIONAL PRESS
Serbs Threaten to Quit Kosovo Government (BIRN, Una Hajdari, 4 February 2015)
After Prime Minister Isa Mustafa axed Aleksandar Jablanovic as returns minister on Tuesday, his Srpska party is considering pulling out of the coalition.
Mustafa’s decision to sack Aleksandar Jablanovic as Minister for Communities and Returns, after a remark he made in January caused mass protests, has unsettled the remaining Serbian ministers in the coalition government.
The minister had infuriated Kosovo Albanians by calling protesters “savages” and after a series of tumultuous protests, Musfa axed him on Tuesday.
Branimir Stojanovic, the Deputy Prime Minister of Kosovo, told Balkan Insight that they did not agree with the decision and were re-examining their participation in the government.
“In the coming days, we will decide about our participation in the Kosovo government,” Stojanovic said.
He said that the Srpska List to which he and Jablanovic both belong will be consulting other members of the list, as well as with Belgrade.
“We will definitely consult with Belgrade about what they think about this. After that, we will bring a final decision,” he continued.
The Srpska List has nine seats in the Kosovo parliament, and two remaining ministers in the government.
It is part of a coalition government with Hashim Thaci’s Democratic Party of Kosovo, PDK, and Prime Minister Mustafa’s Democratic League of Kosovo, LDK.
Srpska was formed before the local elections in November 2013, with the goal of putting forward candidates that would ran on a platform supported by Belgrade.
Dramatic Surge іn Kosovars Crossing Illegally Into EU (Reuters, 4 February 2015)
The European Union is experiencing a steep rise in the number of Kosovo citizens smuggling themselves into the affluent bloc, with 10,000 filing for asylum in Hungary in just one month this year compared to 6,000 for the whole of 2013.
It follows a relaxation of travel rules allowing Kosovars to reach EU borders via Serbia and has coincided with political turmoil and street unrest in Kosovo fueled by poverty, high unemployment and economically debilitating corruption.
The United Nations High Commissioner for Refugees (UNHCR) said hundreds of Kosovars had slipped into Hungary and asked for asylum in the first eight months of last year, only for the number to rocket to 21,000 between September and December.
Hungary’s State Office of Immigration and Nationality said that of 14,000 foreigners who had sought asylum since the turn of the year, 10,000 were from Kosovo, a small, ethnic Albanian-majority state that declared independence from Serbia in 2008.
Over the past few days, crowds of people were seen boarding night buses from the Kosovo capital Pristina bound for Serbia’s capital Belgrade, more than halfway to Hungary.
Among them, 18-year-old student Vilson Beqiri said he would take a second bus from Belgrade to the northern Serbian town of Subotica and then cross the border into Hungary illegally.
“We’ll meet some other people there [in Subotica], pay them, and they’ll lead us to Hungary,” he said. “God willing I’ll be in Germany by tomorrow evening.”
Kosovo education ministry official Azem Guri told Reuters the ministry had “alarming” data indicating 5,200 pupils had left school and moved with their families to the EU since September.
The exodus appears to have been abetted by an EU-encouraged easing of travel rules in Serbia, which since 2012 has allowed Kosovars to enter with Kosovo-issued documents that Belgrade previously rejected given that it does not recognize its former southern province as independent.
It has also coincided with political turbulence and unrest in Kosovo, which held an inconclusive election in June and only formed a new government six months later.
Migrant funnel via Serbia
Rados Djurovic of the Asylum Protection Center NGO in Belgrade said people smugglers may have found new routes to spirit migrants from Serbia into Hungary – a well-trodden path for Syrians, Afghans and others trying to reach Western Europe.
On Monday, 250 illegal migrants from Kosovo were stopped by Hungarian police without valid documents on a train from Budapest to Vienna.
Almost all asylum applications are rejected as migrants cannot show they are fleeing war or persecution, but applying staves off immediate deportation while their cases are being processed. In the meantime, many will give overstretched immigration authorities the slip and push on westwards through the EU’s borderless Schengen zone under the radar.
Most would hope to find work in the grey economy in wealthy Western Europe, hooking up with relatives and friends until they can ultimately legalize their stay.
Hungary’s immigration agency said 40-50 percent of asylum applicants would normally leave the country within 24 hours, and a further 30-40 percent within 3-10 days.
Around 700,000-800,000 Kosovars already live and work in western Europe, mainly Switzerland and Germany – a diaspora that originated with an exodus from repression and war with Serbia in the late 1990s and then stubborn poverty in the 15 years since.
Kosovo declared independence in 2008 and is recognized by more than 100 countries. But Serbia’s refusal – backed by U.N. veto-holder Russia – to do so has impeded Kosovo’s international integration and therefore its economic development.
Kosovo Interior Minister Skender Hyseni met with EU ambassadors on Wednesday to discuss the problem, and appealed to the bloc to speed up procedures for processing asylum requests to discourage would-be migrants.
He pinned the blame on the smugglers, saying: “There are criminals who are profiting on the misfortune of Kosovo’s citizens.”
Croatia warns EU hopeful Serbia over war crimes law (Reuters, by Zoran Radosavljevic, 5 February 2015)
ZAGREB – Croatia will block Serbia from joining the European Union unless it changes a law that allows Belgrade to prosecute Croatians for war crimes committed against Serbs in Croatia, Prime Minister Zoran Milanovic said on Thursday.
Croatia seceded from Serb-dominated federal Yugoslavia in 1991 and fought a war of independence against a Belgrade-backed rebel Serb minority until 1995. More than 15,000 people were killed in the conflict.
Croatia, which joined the EU in 2013, says it supports Serbia’s efforts to enter the bloc too but Milanovic’s comments signalled progress may yet prove rocky. Serbia has formally begun EU accession talks but is unlikely to become a full member of the 28-nation bloc before 2020 at the earliest.
“I think it is a matter of common sense to state right away: Serbia cannot join the EU with such a law, Croatia will not allow it,” Milanovic, who faces a tough fight for re-election later this year, told a cabinet session.
“It’s the principle of ‘the same treatment for all’. There can hardly be a compromise here. We only want our neighbours to be the same as everyone else.”
Any EU candidate country must be unanimously approved by all member states before joining the bloc.
Serbia’s war crimes prosecutor, Vladimir Vukcevic, suggested Croatia’s objection to the law may by politically motivated, with Milanovic’s Social Democratic Party trailing in opinion polls after six years of recession.
He argued that other countries exercised so-called “universal jurisdiction” for grave violations of international law.
“This law has been in force in Serbia for years. It is clear that the Croatian government chose this moment for political reasons and not because there was a real need,” Vukcevic’s office quoted him as saying in an emailed response to a Reuters request for comment.
EU members are required to cooperate on judicial matters. Under the European Arrest Warrant, an EU country can ask for extradition of a foreign citizen suspected of committing a crime on its soil.
Milanovic’s cabinet cited the case of Veljko Maric, a Croatian war veteran who was arrested in Serbia in 2010 and sentenced to 12 years in prison for killing a Serb in Croatia in 1991. Justice Minister Orsat Miljenic said requests to hand the case over to Zagreb, and then for Maric to serve his sentence in Croatia, had “fallen on deaf ears”.
The United Nations’ highest court ruled on Tuesday that neither Croatia nor Serbia had committed genocide during the conflict in Croatia, ruling on genocide suits brought by Zagreb in 1999 and Belgrade in 2010. (Additional reporting by Ivana Sekularac in Belgrade; Editing by Matt Robinson and Mark Heinrich)
Is the Croatia vs Serbia genocide verdict a reminder of The Hague’s insignificance? (The Telegraph, by Dr Natasha Kuhrt, 4 February 2015)
Big Question: Does the ICJ dismissal of genocide charges against Croatia and Serbia show the weakness of The Hague?
Although the International Court of Justice has taken 16 years to decide that neither Serbia nor Croatia have a case against each other, the judgment is nevertheless of interest for several reasons.
Firstly, it reminds us that the ICJ is primarily a judicial organ (part of the United Nations system) but that it is sometimes asked to rule on what are primarily unresolved political issues between States (e.g. Kosovo’s Declaration of Independence).
Furthermore, decisions of the ICJ have no binding force except between the parties and only for that case.
Secondly, it reminds us of the politically charged nature of the definition of genocide even in a court of law.
Why?
Because the Convention on the Prevention and Punishment of Genocide (1948) entails a particular definition of genocide which is quite narrow.
In the present ICJ case, both Serbia and Croatia have sought to expand this definition to cover crimes which in some cases have been characterised as genocidal acts, possibly of ethnic cleansing, but not genocide per se.
The ICJ has determined that despite the fact that while some acts carried out on both sides constituted the actus reas (intent) to commit genocide, the Court could not establish the dolus specialis (specific intent) to commit genocide.
The ICJ can now draw on the jurisprudence of the International Criminal Tribunal for former Yugoslavia (set up in 1994 by the UN Security Council under Chapter 7 powers and still holding trials) and the ICJ notes that the ICTY has never charged an individual with a count of genocide committed against Croats between 1991 and 1995.
In essence, the ruling of the ICJ that neither Serbia’s claim nor Croatia’s counterclaim constitute genocide, is not so much evidence of the court’s weakness, as rather symptomatic of the difficulty inherent in the Genocide Convention itself.
This is principally due to the very narrow definition of genocide as requiring proof of specific intent to destroy a religious, national, ethnical or racial group in whole, or in part. The ICJ has found no such specific intent here.
Ultimately this case shows the politically motivated nature of the claims and counterclaims by both Serbia and Croatia, which cannot be upheld legally.
Dr Natasha Kuhrt is a Lecturer at the King’s College London Department of War Studies
Serbia, Croatia and the ‘crime of crimes’ (Al Jazeera, by Toby Cadman, 5 February 2015)
Croatia’s genocide claim was a political issue.
On February 3, the International Court of Justice (ICJ), the main judicial body of the United Nations, dismissed a claim made by Croatia (and a counterclaim by Serbia) of committing genocide during the Balkan wars of the 1990s. The decision is final and binding.
It is difficult to understand the jurisdiction of international courts and tribunals, particularly so when they issue controversial decisions that appear to be based more on political considerations than legal reasoning. The ICJ is such an institution – misunderstood and about to be criticised for failing to condemn Serbia for genocide for the second time.
The armed conflicts of the former Yugoslavia in the early 1990s stretching a territory that now represents seven sovereign states, lasted for more than half a decade and saw several hundred thousand civilian casualties. However, for all the legal processes that have emerged on the national and international level as a result of these conflicts, there has only been one finding of genocide – Srebrenica.
Beyond politics
Courts and tribunals are supposedly beyond politics and its influence. The principle of the “Separation of Powers” seeks to ensure this, namely that the executive is wholly distinct from the judiciary with one drafting the law and the other interpreting it.
If we expect this at the local domestic level, then we would certainly expect such a principle to be adhered to in the higher international courts given the issues that are being determined.
The ICJ is a curious institution. It resolves disputes between states that are ostensibly political. It has ruled on some of the most important legal principles over the years.
However, it does not enjoy a full separation of powers, as one would expect from a court of national jurisdiction. One of the important considerations that one must consider is that the permanent members of the UN Security Council may exercise the power of veto over the court’s decisions.
We should not fool ourselves to dare to believe that an institution such as the ICJ is devoid of politics. It is clear that those seats of international justice, the ICJ and the ICC, not only have to deal with issues of law, justice and accountability, but also with the wider political ramifications of its decisions.
As we have recently seen from the decision of the ICC prosecutor in relation to Palestine, we can also see with the ICJ decision regarding Croatia and Serbia, the decision the court reaches is not just about the legal issues placed before the court, but the wider context of peace, justice and reconciliation.
Separation of powers
Such is the level at which both courts operate that each decision it makes has a political and often international effect. It is perhaps easier therefore to maintain the separation of powers and ignore the influence of politics in lower domestic courts than it is in those that are distinctly international and where the stakes are significantly higher – in Palestine there is statehood and in Serbia there is EU and NATO membership.
Genocide is the most difficult crime to prove, and although it is often referred to as ‘the crime of crimes’ given its nature, the use of the word is often politicised and thus the courts that rule on such issues are forced to take political considerations into account.
A number of commentators have questioned the motivation of Croatia to bring a case before the ICJ arguing that Serbia was guilty of genocide during the conflict. Following the filing of the case by Croatia in 1999, arguing that Serbs, led by President Slobodan Milosevic, targeted ethnic Croats during the conflict, Serbia responded by filing a counter suit.
In 2010, Serbia sought to argue that ethnic Serbs were expelled when Croatia launched its 1995 operation to retake territory captured by Serbs, and during the conflict that followed, it was Croatia that was guilty of genocide.
Instances of atrocities in the conflict are well-documented and there is no need to rehearse the events here, and, there are instances that are perhaps rightly described as genocide given their nature. However, genocide is the most difficult crime to prove, and although it is often referred to as “the crime of crimes” given its nature, the use of the word is often politicised and thus the courts that rule on such issues are forced to take political considerations into account.
Questions have been raised about the reasoning behind the cases filed as it is unclear what each party was seeking to achieve. It was unlikely that if either case had found favour it would have contributed further to the sustained period of stability within the region, nor is it likely that it would have assisted any party in its future development.
Is it therefore arguable that the genocide claim was more of a political issue, that the citizens demanded that their undoubted suffering be acknowledged, and that a country with numerous victims wishes to have its voice heard. This falls on the moral obligation to recognise that what happened was, in fact, genocide.
Sliding scale of severity
One of the difficulties with this approach is that it places international crimes on a sliding scale of severity. One tends to approach this on the basis that the higher the number of victims and the greater suffering that is inflicted undoubtedly should be considered genocide and nothing less will suffice.
This is, of course, legally speaking, quite wrong. In principle, genocide could be established with a single death, whereas crimes against humanity cannot. Genocide, as the ICJ judgement confirms, must involve a clear intent to remove (in whole or in part) a clearly identifiable group. In these instances, the ICJ ruled that on the evidence presented, this had not been established.
The decision therefore while anticipated, clearly did have a political element.
The court’s decision recognised that the material act of genocide was proven by both Croatia and Serbia, a decision that is hugely significant in itself and should not be trivialised. However, the court then went on to conclude (by a majority in the case of Croatia and unanimously in the case of Serbia) that the mental element required to prove a claim of genocide, the specific intent, was not established.
Importantly, the court recognised that “a raft of crimes” had been committed and urged the two states to continue their cooperation to settle the fate of missing persons, which continues to represent a significant barrier to long term regional stability.
Given the nature of the conflict, it would have invited a significant reaction if one state had been deemed to have committed genocide and the other had not. Such a decision would have invited further protest and instability. It is arguable, therefore, that political consequences were considered when making the factual decision.
The ICJ must remember that first and foremost it is an institution of justice, and political considerations should not enter the court nor the decision-making process, although sometimes, perhaps discretion is the better part of valour, and the politics of the situation are considered for the greater good.
It is unlikely that justice, in the strict sense, has suffered in this case when all the issues are considered. However, that is not to say that justice may be neglected on another occasion where the politics of a situation are considered at the cost of the facts, and more importantly, at the cost of the victims.
As it has often been said, courts try cases, but sometimes cases can try courts.
Toby Cadman is an international criminal law specialist. He is a barrister member at Nine Bedford Row International Chambers in London and a member of the International Criminal Bureau in The Hague.
The views expressed in this article are the author’s own and do not necessarily reflect Al Jazeera’s editorial policy.
Logjam Ends Over Key Post in Bosnian Entity (BIRN, by Elvira M. Jukic, 5 February 2015)
After Bosnia’s parties agreed on a joint candidate for a key post in the country’s Federation entity, the formation of a state government finally looks possible.
Bosnia’s Central Election Commission on Wednesday confirmed the selection of Bosniak, Croat and Serb candidates for the posts of president and vice-presidents of Bosnia’s larger entity.
The appointments should hasten the long-delayed formation of a government in the Federation of Bosnia and Herzegovina.
The breakthrough became possible after an opposition Social Democratic Party, SDP, agreed to support Milan Dunovic’s selection as the ethnic Serb Vice-President of the Federation.
Previously, the ruling parties had nominated Marinko Cavara, of the Croatian Democratic Union, HDZ, as President of the Federation, and Melika Mahmutbegovic, from the Party of Democratic Action, SDA, as Bosniak Vice-President.
With all three nominations confirmed, the Election Commission will wait for eventual complaints from other parties, after which both chambers of the Federation parliament will vote on the three candidates, which is expected to happen soon.
Once the Federation’s president and vice-presidents are elected, they will nominate a new Federation government, which then has to be confirmed by the entity parliament.
The process of forming the government in the Federation has been delayed for weeks, partly because there were not enough Serbian MPs and later on account of political feuds.
This has also delayed the formation of the state government in Bosnia, called the Council of Ministers, since some parties insisted that the state government can be formed only after governments in both entities are duly elected.
Bosnia’s general elections were held almost four months ago. Governments were since formed in Bosnia’s other entity, Republika Srpska, as well as in one of the ten cantons within the Federation.
The drawn-out process has fed suspicions that Bosnia’s ruling elites are determined to maintain the old policies that have brought the country into a deep political, economic and social crisis over the past eight years.
“It’s hard to expect anything fundamentally new from parties that were in power recently… so there is no novelty in the governments’ promises,” Florian Bieber, Balkan expert and professor at Graz university, said on Wednesday.
“This makes it very hard to achieve any change in Bosnia, because if everybody is in power somewhere, nobody is in the opposition completely,” he added.
“This means that everybody can criticize everybody else for what is not happening, and the fundamental structural problem of Bosnian politics is that nobody is really responsible for decisions,” he continued, referring to the fact that different parties hold power at different levels of government.
Bieber concluded that no major changes in the behavior of Bosnia’s political elites can be expected without stronger pressure, either from the international community or from the country’s own frustrated citizens.
