COURT OF JUSTICE AND GENOCIDE LAW (I)
Gunduz Aktan
The New Anatolian, Turkey
March 7 2007
The International Court of Justice at the Hague late last month
concluded a case filed in 1993 by Bosnia against Serbia.
In the war that broke out in early 1992, Bosnian Serbs, with personnel
and weapons provided by the Serbian Army, carried out an appalling
"ethnic cleansing" against Bosnians and Croats. Since there was an
arms embargo on Yugoslavia, arming Bosnians was impossible.
The United Nations "peace" force UNPROFOR either failed to protect
the Bosnians or did not want to do so.
Under these circumstances, Turkey in December 1992 asked the Human
Rights Commission to convene an extraordinary meeting and secured
the insertion of the term "genocide" into the resolution adopted
by the commission. Turkey’s aim was to put pressure on Serbia and,
if necessary, push the international community toward an armed
intervention in Bosnia under Article 1 of the Genocide Convention
(1948) which makes it a state responsibility to prevent genocide.
This resolution later led to the establishment of the International
Criminal Tribunal for the former Yugoslavia (ICTY) by the UN Security
Council and the prosecution of perpetrators on charges of genocide
and other crimes.
Turkey also encouraged Bosnia to initiate court proceedings against
the Republic of Yugoslav Federation of the time in the framework
of Article 9 of the Genocide Convention. This is the case that was
finalized last month.
At that time some argued that Turkey’s pursuing an active role
over genocide would cause counter-claims due to the so-called
Armenian genocide claims. We dismissed them. The tragedy in Bosnia,
however serious it was, was outside of the genocide definition of
the convention. Should the court remain within the limits of law,
it would not broaden the definition of genocide to include Armenian
relocation, which had nothing to do with genocide. The judgment of
the court proved Turkey’s position to be right.
The court’s ruling says the terrible atrocities in Bosnia-Herzegovina
were not genocide. The only exception was the Srebrenica massacre
of June 12-13, 1995. The ICTY ruled that this massacre amounted to
genocide in the cases of Krstic and Blagojevich. Had there been no
decision of the ICTY, probably the court would not have characterized
the Srebrenica massacre as genocide.
When the court’s judgment is analyzed, the legal reasons underlying
the court’s attitude, which at first sight provokes resentment,
are understood. The court said the first three acts out of five
proscribed under Article 2 of the convention are relevant to this
case. Regarding the first act, i.e. killing members of the group,
the court admitted that grave massacres were committed in Bosnia.
Regarding the second, i.e. serious bodily and mental harm to the
members of the group, it agreed that incidences of mass torture
and rapes occurred. And concerning the third act, i.e. deliberately
inflicting on the group conditions of life calculated to bring about
its physical destruction, the court said this crime was committed,
particularly in detention camps where inhuman conditions prevailed.
However, the court also ruled that the commission of these criminal
acts as defined in the genocide convention doesn’t necessarily
amount to genocide, inasmuch as the Serbians didn’t have the intent
to destroy the Bosnians in committing these acts. That is to say,
the court rules that massacres, mass torture and rape, and the
extermination of thousands of people as a result of the inhuman
conditions of detention camps, do not amount to genocide, unless
there is special intent to destroy the group.
The court underlines that the acts of crime committed with the aim
of homogenizing the population of a region per se may not be deemed
genocide. It stipulates that in addition to displacing a group,
there should be the intent to destroy it as well. In other words, it
says that "ethnic cleansing" carried out in Bosnia is not necessarily
genocide.
To prove the "intent" to destroy a people, the claims that "the Blue
Book says so," "Right Hon. Henry Morgenthau or Vicar Priest Johannes
Lepsius testify this," "world historians and sociologists already
made up their mind," or "20 parliaments have recognized the genocide
anyway" are no more than rumors.
The court’s verdict is not an extraordinary development to reinforce
Turkey’s stance vis-a-vis Armenian genocide allegations. But it proves
how valid our legal attitude is. There has been no legal thesis of
the Armenians anyway. This decision explains the reasons why not.
Ara Sarafian, who must have predicted the verdict, is late in his
proposal. The problem cannot be reduced to a particular region of
Turkey, namely Harput. On the other hand, neither intellectuals nor
historians can pass judgment on it.
>From now on, legal settlement is the only way.