What Israel Can Learn from the International Court of Justice Ruling on Genocide in Srebrenica

Vol. 6, No. 24     March 15, 2007

• On 26 February 2007, the International Court of Justice (ICJ) in The Hague published a judgment ruling that the July 1995 massacre of an estimated 7-8,000 Bosnian Muslim men and boys at Srebrenica by Bosnian Serb Forces was an act of genocide.

• This case was the first where a state brought accusations of genocide against another state. The ruling took almost ten years to be decided. The court decided that despite the multiple murders and terrible conditions inflicted upon many people in various concentration camps and other places in Bosnia, no other events there besides the Srebrenica murders were genocide.

• The court gave no attention to the larger context of the killing of at least 100,000 people and the ethnic cleansing of an estimated two million people in the former Yugoslavia in which Orthodox Serbs, Bosnian Muslims, and Catholic Croats participated. Foreign volunteers were also involved.

• Since it has now been ruled that states can be tried for genocide, a case can probably be brought under the Genocide Convention against Iran since Article III of the Genocide Convention describes incitement to genocide as a punishable act. By including this issue, the drafters of the Convention sought to create a breach of international law without the crime having already been committed.

• The ICJ ruling may have applicability to the Palestinian Authority, as well. The Israel-PLO Interim Agreement of September 28, 1995 (Oslo II) stipulates that the Palestinian Authority “shall exercise its powers with due regard to internationally accepted norms.” Yet the Charter of Hamas, the leading party in the PA, calls for genocide. As recently as 12 March 2007, Hamas announced that it was still seeking Israel’s destruction despite its agreement to enter a Palestinian unity government with Fatah.

On 26 February 2007, the International Court of Justice (ICJ) in The Hague published a judgment ruling that the July 1995 massacre of an estimated 7-8,000 Bosnian Muslim men and boys at Srebrenica by Bosnian Serb Forces was an act of genocide.¹ The accusation of genocide had been brought before the tribunal by Bosnia and Herzegovina against Serbia and Montenegro, in the framework of the Genocide Convention.

This Convention on the Prevention and Punishment for the Crime of Genocide came into force in 1951. From the discussions at the time it was adopted, it seems clear that it targeted only individuals and not states. This case was the first where a state brought accusations of genocide against another state. Normally, the ICJ decides two or three cases per year; the ruling on genocide in Srebrenica took almost ten years to be decided.

The court decided that it had jurisdiction, but only in the case of Serbia. It also ruled that despite the multiple murders and terrible conditions inflicted upon many people in various concentration camps and other places in Bosnia, no other events there besides the Srebrenica murders were genocide, thus clearly separating this mass murder from all other war crimes and possible crimes against humanity there.

The ICJ found that Serbia bore no direct responsibility for the genocide, but that it should have acted to stop the murders. It also ruled that Serbia should cooperate with the International Criminal Tribunal for the former Yugoslavia to bring the perpetrators of the genocide to justice.² Due to the definition of the subject before the court, no attention was given to the larger context of the killing of at least 100,000 people and the ethnic cleansing of an estimated two million people in the former Yugoslavia in which Orthodox Serbs, Bosnian Muslims, and Catholic Croats participated. Foreign volunteers were also involved.

From an Israeli perspective, several aspects relating to the ICJ ruling are relevant:

1. Since it has now been ruled that states can be tried for genocide, a case can probably be brought under the Genocide Convention against Iran since Article III of the Genocide Convention describes incitement to genocide as a punishable act. By including this issue, the drafters of the Convention sought to create a breach of international law without the crime having already been committed. Thus, in order to succeed in a case of incitement, a prosecutor need not prove that genocide has taken place. The accusations do not have to be limited to Iranian President Mahmoud Ahmadinejad, who has repeated his genocidal intentions toward Israel on several occasions. This is not only an individual matter, as he has been seconded by very senior officials in the Iranian government.³

1. The United Nations was not accused by Bosnia and Herzegovina before the ICJ, though it had Dutch troops at Srebrenica at the time of its occupation by the Bosnian Serbs. The UN soldiers assisted in the separation of the Bosnian men from the women and fled when the genocide had already started. The UN must have been aware of the risk of genocide but also did nothing to prevent it. Unless Bosnia and Herzegovina bring accusations against the UN, however, the ICJ cannot rule on this matter.

1. As far as The Netherlands is concerned, there is information that the Dutch government was aware of the major risks for the Bosnians when the Dutch government withdrew its troops in those fatal days in July 1995. However, the official 2002 report on the Srebrenica murders by the Dutch Institute for War Documentation (NIOD) referred rather casually to the possibilities of risk to the population in the discussions of the Dutch cabinet in a detailed report of well over 3,000 pages. One gains the impression that the Dutch government could not have guessed that a genocide would take place.⁴

When the NIOD report was published, Deputy Prime Minister Els Borst attacked this statement, saying: “It is too good to be true…we were all afraid about the fate of these men. That I recall vividly. We were certainly not without worry about their fate. We were not so naïve. We knew that the men and women were separated. That usually meant that the men would be jailed. But knowing Mladic [the Bosnian Serb general], the chance was of course greater that he would say: ‘this is an easy way to kill seven thousand future soldiers.'”⁵ It is also known that another Dutch minister, Jan Pronk, told his colleagues in 1995 that the Dutch soldiers had to defend the Muslims in Srebrenica.⁶

1. The ICJ ruling may have applicability to the Palestinian Authority, as well. The Israel-PLO Interim Agreement of September 28, 1995 (Oslo II) stipulates that the Palestinian Authority “shall exercise its powers with due regard to internationally accepted norms.” Yet the Charter of Hamas, the leading party in the PA, calls for genocide. Article 7 states that it will try to implement what the prophet Mohammad said: “Muslims will fight the Jews (and kill them); until the Jews hide behind rocks and trees, which will cry: ‘O Muslim! There is a Jew hiding behind me, come on and kill him!'”⁷ As recently as 12 March 2007, Hamas announced that it was still seeking Israel’s destruction despite its agreement to enter a Palestinian unity government with Fatah.⁸ Here the United Nations is aware of the intent of genocide and does not take a firm stand with the Palestinian Authority in this respect.

And in a rather different category: In view of the many major murders in Bosnia not considered by the ICJ as genocide, the particular perversity of Muslims and Westerners – including mainstream politicians and academics – to accuse Israel of committing a holocaust or genocide of the Palestinians is exposed even further.

All these matters merit consideration by the Israeli government, both in its policies, and in explaining them.

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Notes

* The author thanks Justus Weiner for his valuable comments.

1. International Court of Justice, Case Concerning the Application of the Convention on the Prevention and the Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, 26 February 2007. The Bosnian Federal Commission on Missing Persons listed 8,373 whom they presume were murdered.

www.icj-cij.org/icjwww/idocket/ibhy/ibhyjudgment/ibhy_ijudgment_20070226_frame.htm

2. Ibid., pp. 168-171.

3. Justus Reid Weiner, Meir Rosenne, Elie Wiesel, Dore Gold, Irit Kohn, Eytan Bentsur, and Dan Naveh, Referral of Iranian President Ahmadinejad on the Charge of Incitement to Commit Genocide (Jerusalem: Jerusalem Center for Public Affairs, International Association of Jewish Lawyers and Jurists, 2006).

4. Nederlands Instituut voor Oorlogsdocumentatie, Srebrenica: Een ‘Veilig’ Gebied (Amsterdam: Boom, 2002), II:2460. [Dutch]

5. “Het was ons allen in de bunker bang om het hart,” Volkskrant, 18 April 2002.

6. Elaine de Boer en Jan Hoedeman, “Minister etaleert zijn twijfels en getergdheid,” Volkskrant, 16 April 2002.

7. Raphael Israeli, Fundamentalist Islam and Israel (Lanham, MD, Jerusalem Center for Public Affairs and University Press of America, 1993), pp. 132-159.

8. Nidal al-Mughrabi, “Hamas says still seeks Israel’s destruction,” Reuters, Washington Post, 12 March 2007.

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Dr. Manfred Gerstenfeld is chairman of the Board of Fellows of the Jerusalem Center for Public Affairs. He is an international business strategist who has been a consultant to governments, international agencies, and boards of some of the world’s largest corporations. Among the ten books he has authored are Europe‘s Crumbling Myths: The Post-Holocaust Origins of Today’s Anti-Semitism (JCPA, Yad Vashem, World Jewish Congress, 2003) and European-Israeli Relations: Between Confusion and Change? (JCPA, Konrad Adenauer Stiftung, 2006).