| 17.07.2012 |
WAR CRIMES AND GENOCIDE:CAN THEODOR MERON PRESERVE ICTY'S REPUTATION? |
The
International Institute for Middle-East and Balkan Studies (IFIMES) in
Ljubljana, Slovenia, regularly analyses events in the Middle East and
the Balkans. In view of the commemoration of the 17th anniversary of
genocide in Srebrenica and the recent partial acquittal of Radovan
Karadžić at the halfway stage of his trial, IFIMES has analysed the
current situation in relation to war crimes and genocide committed in
Bosnia and Herzegovina. The most relevant sections from the analysis
entitled “WAR CRIMES AND GENOCIDE: CAN THEODOR MERON PRESERVE ICTY'S
REPUTATION?” are published below.
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With
its Resolution No. 827 of 25 May 1993, the UN Security Council,
expressing once again its grave alarm at continuing reports of
widespread and flagrant violations of international humanitarian law
occurring within the territory of the former Yugoslavia, and especially
in the Republic of Bosnia and Herzegovina, established the
International Criminal Tribunal for the Former Yugoslavia (ICTY).
The
legal basis for the establishment of ICTY was the decision of UN
Security Council in which it was stated that the situation in former
Yugoslavia constituted a threat to international peace and security. UN
Security Council believed that the establishment of an international
tribunal and the prosecution of persons responsible for the violations
of international humanitarian law would contribute to ensuring that
such violations are halted and effectively redressed. With this and
other resolutions UN Security Council set a long series of strategic
goals for the ICTY. The first goal of ICTY's establishment was already
missed at the very beginning. ICTY not only failed to halt further war
crimes, but even awaited the genocide in Srebrenica which was committed
in July 1995 as the "grand finale" of war atrocities in Bosnia and
Herzegovina.
After the recent partial acquittal of Radovan Karadžić
at the halfway stage of his trial according to which he was found not
to be responsible for genocide in seven Bosnia and Herzegovina
municipalities, it has become obvious that all the goals set by the UN
Security Council have collapsed, including all the jurisprudence ICTY
has reached since its establishment.
GENOCIDE AS AN ACADEMIC DISCUSSION AND LEGAL FICTION
The
issue of genocide in connection with ICTY has become the subject of an
academic discussion for most judges at ICTY, ICJ, ICC and other
tribunals in the Hague as well as at diplomatic meetings and in private
judicial and political circles, which is best illustrated by the
statements made by the South Korean Judge O-Gon Kwon who has been
presiding in the Radovan Karadžić case. Accusing the Japanese of
committing war crimes against the Korean people while stating that
nobody was held responsible for those crimes was a surprising statement
made by judge O-Gon Kwon, that can be heard from the diplomatic
circles discussing genocide and the dissatisfaction of war crimes
victims in Bosnia and Herzegovina. Kwon's statements remind of the
statement made by Radovan Karadžić when he responded to the
establishment of ICTY: "Should this tribunal be established, it will
have plenty of work to do, starting with the 2nd World War crimes,
first of all against the Serbs ..., and then it will have to deal with
the war crimes in Vietnam, Korea, the Cambodian war ...". That is too
great coincidence even for an international tribunal!
Judge
O-Gon Kwon also participated in the adoption of several other
compromising decisions and judgements at ICTY. Still, the mistakes made
by certain ICTY judges remained unsanctioned and protected by the UN
diplomatic immunity.
Analysts have warned that
a system should be introduced to sanction judges and other ICTY staff
and that those who make mistakes in their work should be forced to
resign and stop working for the Tribunal. This would enable the UN and
ICTY to preserve their reputation. Analysts therefore suggest that the
best solution would be for the judge O-Gon Kwon to resign from ICTY.
RESPONSIBILITY LIES WITH THEODOR MERON
The
greatest responsibility for the future of ICTY lies with the current
President of ICTY and the President of the International Residual
Mechanism for Criminal Tribunals Theodor Meron, an experienced
lawyer and judge, who should examine all the possible implications of
the partial acquittal in the Karadžić case as well as a series of other
issues that have appeared in the final stage of ICTY's work. On 7 June
2012 President Meron explained the function of the Residual Mechanism
(the institution which will replace ICTY and continue its work) to the
UN Security Council as follows: "By establishing the Residual
Mechanism, the Council has helped to guarantee that the closure of the
two pioneering ad hoc tribunals does not open the way for impunity to
reign once more".
Acting under Chapter VII of
the Charter of the United Nations, the UN Security Council adopted
Resolution 1966(2010) on the establishment of the Residual Mechanism
which shall continue certain functions of ICTY after its closure.
The partial acquittal in the Karadžić case has encouraged President of the Republika Srpska entity of Bosnia and Herzegovina Milorad Dodik,
who succeeded Radovan Karadžić in this function, to continue rejecting
the existence of genocide in Bosnia and Herzegovina. The present
leaders of Bosnian Serbs headed by Dodik have thus used the partial
acquittal to deny the crimes committed in Bosnia and Herzegovina,
referring the international and Serbian public to the judgement
confirmed by Judge O-Gon Kwon and his colleagues.
Analysts
have concluded that the responsibility now lies with ICTY President
Theodor Meron who has the obligation to protect and preserve the
reputation of the Tribunal and to ensure the conditions for its
professional functioning. ICTY's reputation now depends on the next
steps which its President Meron will take.
CROATIAN STATE ATTORNEY'S OFFICE PROTECTS MILORAD DODIK?
"Justice
is an indispensable ingredient of the process of national
reconciliation. It is essential to the restoration of peaceful and
normal relations between people who have had to live under a reign of
terror. It breaks the cycle of violence, hatred and extra-judicial
retribution. Thus Peace and Justice go hand-in-hand," said the late Antonio Cassese, ICTY's first and most eminent President.
However,
in case of Karadžić's successor in the function of the President of
Republika Srpska Milorad Dodik, Cassese's statement has been derogated
and devalued. Namely, as a member of the war-time Assembly of Republika
Srpska Dodik supported rocket attacks on Zagreb on 2 and 3 May 1995,
which is evident from the transcript of the 3rd extraordinary meeting
of Republika Srpska National Assembly which was held on 23 and 24 May
1995 and chaired by the war crimes convict Momčilo Krajišnik.
The transcript, the authenticity of which was confirmed by the Hague
Tribunal, proves that Dodik supported the bombing of Zagreb, which is
evident among other from the following statement made publicly at the
meeting of the Republika Srpska National Assembly: "Regarding the
bombing of Zagreb, I agree that Zagreb should be the target, but that
should not be said publicly; if it is to be said, it should have been
done in another way, the editor should be discreet in letting that
information go out..."
Croatian State
Attorney's Office (State Prosecutor) still protects Milorad Dodik
although it holds all the relevant facts on the committed war crimes in
Zagreb. This justifiably points to the question why the chief State
Attorney of the Republic of Croatia Mladen Bajić has not brought charges against Milorad Dodik for the war crimes committed in Zagreb?
As
long as it has to deal with persons such as Dodik and the like, Bosnia
and Herzegovina can not expect international reconciliation,
restoration of normal relations and its future in the community of
European nations. Political leaders who are ready to use any
opportunity to deny war crimes and genocide in Srebrenica and other
parts of Bosnia and Herzegovina now have their ally - Judge O-Gon Kwon
and some of his colleagues.
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http://www.ifimes.org/default.cfm?Jezik=En&Kat=10&ID=703
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