The suit of Bosnia-Hercegovina against Serbia-Montenegro filed with the International Justice Court in the Hague, alleging a violation of the Genocide Convention is to a large extent based on the events that took place in Prijedor. Similarly, most of the indictments of Serbs for crimes in Bosnia at the International War Crimes Tribunal in the Hague are also linked to the events in Prijedor. That equally applies to direct perpetrators of crimes (camp guards and camp commanders - Sikirica and others), and to municipal leadership (Stakic, Drljaca and others), as well as to the leading politicians in the Republic of Srpska (Krajisnik, Karadzic, Plavsic) and Serbia-Montenegro (Milosevic). The outcome of the dispute in front of the International Justice Tribunal is, naturally, unpredictable, but the legal classification of facts in the verdicts of the International War Crimes Tribunal will definitively affect it. At this point there are seven such verdicts, and all seven agree that there was no genocide in the Prijedor municipality.
The most recent verdict of the Tribunal, in the Stakic case, is especially instructive regarding the alleged genocide. The bench, led by judge Schomburg, after careful deliberation, acquitted Stakic, the chief of the municipal crisis headquarters and the mayor of Prijedor, of genocide charges. This happened in spite the fact that all significant factual claims from the indictment were proven and that Stakic's responsibility for all grave crimes he was charged with was also proven. Besides, that is obvious from the sentence - Stakic was sentenced to life imprisonment, which is the most severe punishment available and rendered so far by the Tribunal. On the other hand, in the only case so far where the bench found the defendant, General Krstic, guilty of genocide, the verdict resulted in a less severe sentence [45 years in prison]. Therefore, there is no doubt that crimes of Stakic and other Serbs in Prijedor were grave and horrendous, but it is becoming increasingly clear that they do not constitute genocide.
Namely, genocide does not depend on the gravity of the attempted of committed crime, but on the intent behind these crimes. Only those who act with the intention to fully or partly destroy an ethnic group "as such", can be found guilty of genocide. The intended destruction must be physical and/or biological; the intent to disperse the group or to destroy its cultural and religious institutions and its social structure is not sufficient for genocide. When members of a group are removed from a certain territory through violence, murders, torture, robbery and all sorts of threats, so that that territory becomes ethnically homogeneous, i.e. "clean", that does not constitute genocide but the so-called ethnic cleansing, or persecution, extermination and/or other crimes against humanity from the article 5 of the Tribunal Statute.
However, there is an inclination not to differentiate between ethnic cleansing and genocide. That is the basis of the Bosnian suit in the International Justice Court. For example, it states that "ethnic cleansing, as practiced by the Serb authority, is actually genocide", or "ethnic cleansing is also genocide". Although that is not stated explicitly, the prosecution of the War Crimes Tribunal also sometimes does not make a distinction between ethnic cleansing and genocide. This is especially true of cases related to the Prijedor municipality. According to the 1991 population census, Muslims were 43.9 percent of population in the municipality, while Serbs were 42.3 percent of population. In 1996 Serbs were more than 99 percent, while Muslims constituted less than one percent of population. Some resolutions of the UN General Assembly also claim that ethnic cleansing is "one type of genocide" (for example Resolution 47.127 from December 1992). Some legal experts, for example professor Bassiouni, who headed the UN Expert Commission for establishment of violations of humanitarian law on the territory of the former Yugoslavia, support that view.
The verdict in the Stakic case is an important contribution to the untangling of this complicated issue. It draws a clear distinction between ethnic cleansing and genocide. It is clear that some formulations from that verdict will be quoted in the future practice of the Tribunal and other courts. For example: "it is not sufficient to deport a group or its part. It is necessary to draw a clear distinction between physical destruction or mere dissolution of the group. Expulsion of a group or its part is not sufficient for genocide." In the continuation of the verdict, judge Schomburg quotes famous legal scholar K. Kres [sp?] who writes: "that is true, even if the expulsion may be characterized as tending towards the dissolution of the group, through fragmentation of assimilation. This is so because dissolution of a group is not the same as its physical destruction." Or, again judge Schomburg: "the key factor is not the physical destruction of the group, but the specific intent to destroy the group". In case of genocide, the perpetrator must intend to destroy some group because of "some characteristics that are specific for it". In ethnic cleansing, crimes are not committed because of specific characteristics of the group as such, but with the intention to expel the group, whatever it may be, from some territory. Just like the earlier verdict in the Sekirica case, the verdict in the Stakic case indicates that ethnic cleansing, not genocide, took place in Prijedor.
The verdict in the Stakic case will influence the status of our country in the dispute with Bosnia-Hercegovina in the International Justice Tribunal. True, just like the verdict in the Krstic case, which established existence of genocide in Srebrenica in July 1995, this is not a final verdict, but it should be observed together with the verdict in the Sikirica case, which is final. Besides, this verdict will have to be taken into account by the appeals bench of the tribunal when making a decision in the Krstic case.
Finally, the verdict in the Stakic case tells us something about a possible strategy for defense of Serbia-Montenegro in the International Justice Tribunal. Hitherto criticism of that strategy was twofold. Some critics claim that the best defense was to accuse Bosnia-Hercegovina of responsibility for crimes committed by Muslims against Serbs. That is plainly wrong, as the attempt to establish "balance of guilt" is not a defense but, on the contrary, the admission of own guilt with emphasis of the guilt of the other party, as if two guilts cancel each other and two evils make one good. Other critics believe that it is wrong to use any legally available means and even question the merit of the suit because this is not an ordinary case but a chance for our country to break with the past and show that it has been transformed. Such an attitude, which advocates repentance and cleansing as a path towards moral rebirth has undoubted roots in ethics. However, repentance and cleansing may be achieved without court and outside court. The true question is what should be done with the specific case of Bosnia-Hercegovina against Serbia-Montenegro in the International Justice Tribunal. The strategy of moral rebirth, it seems, implies the acceptance of charges made by Bosnia-Hercegovina, and acceptance of charges is not a defense strategy.
There are other reasons why the acceptance of charges would not be favorable for Serbia-Montenegro. The verdict in the Stakic case demonstrates that charges and claims made in the suit of Bosnia-Hercegovina are not always correct and based on facts. For example, the Bosnian suit mentions many more victims than established by the International War Crimes Tribunal. Secondly, the Bosnian suit charges that in the last decade Serbia-Montenegro carried out systematic genocide against Muslims, Hungarians and Albanians on the territory of FR Yugoslavia, for which no evidence is offered. Finally, the Bosnian suit claims that all those crimes classified by the Hague Tribunal as crimes against humanity or war crimes are actually genocide. To accept such, baseless charges, would imply a sort of false self-incrimination. Besides, it would not contribute to the establishment of the truth regarding the events in Bosnia-Hercegovina between 1992 and 1995. Therefore, the most sensible defense strategy seems to be the one that uses evidence to rebut all exaggerated and inaccurate charges from the suit, and sticks to the legal definition of the Genocide Convention that inspired the verdict in the Stakic case.
Author is a lawyer from Belgrade