A nation on trial for its past

Serbia and Montenegro may become the first country to be found guilty of genocide.

Serbia and Montenegro, already struggling to find its place in Europe, risks becoming the first state ever to be formally branded genocidal, as judges at the World Bank last week began hearing arguments in a Bosnian lawsuit over crimes committed during the war in the early 1990s.

The case could make Serbia, as the successor state to Yugoslavia, liable for tens of billions of dollars in reparations. But Bosnian Muslims say the suit's importance lies elsewhere, in creating an accurate and unchallengeable account of the conflict, which continues to poison regional politics.

"For our future, to have clean relations with our neighbors, we need to have a clear vision of our past and our future," says Sakib Softic, the lead Bosnian lawyer at the World Court in The Hague. "The international court has the authority, with its judgment, to finish up these questions from our past and move on toward the future."

While another international court in The Hague is trying individuals - including former Yugoslav president Slobodan Milosevic - for war crimes, the International Court of Justice (ICJ), as the World Court is officially known, hears cases between states.

Bosnia must prove to the court not only that genocide occurred, through the policy of "ethnic cleansing," but that the Bosnian Serb militias committing it did so on the orders of Yugoslav government officials, and with their support.

The Bosnian side "seeks to establish responsibility of a state which, through its leadership and through its organs, committed the most brutal violations of ... the most sacred instruments of international law," Mr. Softic told the 16-judge panel in his opening statement last week.

When they present their oral arguments this week, Serbia's lawyers are expected to argue that the court has no jurisdiction over the case because when it was brought in 1993, the former Republic of Yugoslavia was not clearly recognized as a member of the United Nations, and thus not of the ICJ either.

It was on those grounds that in 2004 the court dismissed a suit filed by Serbia and Montenegro against the US-led bombing of Serbia during the 1999 Kosovo war.

Serbia's lawyers are also expected to argue that however horrific the crimes committed in Bosnia by Bosnian Serb forces, such as the massacre of more than 8,000 Bosnian Muslim men and boys near Srebrenica, the authorities in Belgrade were not responsible for them.

The case will challenge the ICJ, which is more accustomed to dealing with reconciling territorial claims in boundary disputes between nations. "This is a very, very political affair, and the decision will be a grave one," says Emmanuel Decaux, an international law professor at the University of Paris II.

In the field of international humanitarian law, the ICJ has been overshadowed by ad hoc war-crimes tribunals like those set up in The Hague to try cases arising from the Balkan wars, and in Arusha, Tanzania, to deal with those responsible for the Rwandan genocide, and by the recently created International Criminal Court, which has yet to hear a case.

"We are in the process of creating the architecture of international accountability for human rights violations," says Nicholas Howen, head of the Geneva-based International Commission of Jurists. "You need to hold individuals responsible, but there is a big gap if you can't say the machinery of a state is responsible, too."

The court's judgment, not expected until late this year, is eagerly awaited in Bosnia-Herzegovina. "I expect the court ... to give a good decision and say that Serbia is guilty," says Refik Begic, the Muslim mayor of Bratunac, a majority Serb town in eastern Bosnia. "If we are to trust each other and establish a good relationship, we need to know what happened here."

Serbian leaders, however, say that raking over the coals of the past will be bad for the future. The lawsuit could have "dramatically negative effects on future relations in the Balkans," Serbia's deputy prime minister, Miroljub Labus, told Nezavisne Novine, a newspaper published in Bosnia-Herzegovina's Serb-dominated Republika Srpska.

But in a region divided as much as anything by opposing memories and interpretations of what happened during the war "this [case] is about establishing the nature of the war, whether it was aggression or whether it was civil war," says Nerma Jelacic, a human rights investigator in Sarajevo.

The International Criminal Tribunal for the Former Yugoslavia (ICTY), where Mr. Milosevic is on trial, has already ruled that genocide did occur in Bosnia. Although the ICJ is not bound by that precedent, "it would be very troubling, and troublesome for the coherence of international justice" if the ICJ judges find otherwise, says Professor Decaux.

It will not be easy, however, for the Bosnian side to establish the Yugoslav government's responsibility for the war crimes its proxy forces committed. Prosecutors at the ICTY have sometimes had trouble proving all the links in alleged chains of command between the battlefields and Belgrade, and Bosnian lawyers at the World Court will not be able to use all the evidence presented at the ICTY, some of which Belgrade provided only on the condition it not be released to third parties.

The hearings will continue until May 9, when the judges will retire to consider what they have heard, along with thousands of pages of legal arguments. That is expected to take several months. The case was first brought in 1993, and has been prolonged by repeated procedural incidents and political upheavals in Belgrade.

But rather than blunting the impact of the judgment, the long delay might actually give it greater force, suggests Mr. Howen. "It shows the timeless nature of the crimes, the timeless need for accountability, and the timeless nature of the law," he says.

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