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ONLINE NEWSLETTER - International issue

No. 424

October 12, 2006

1. Helping Bosnia: Bait-and-switch

2. Bosnia's "Accidental" Genocide


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1. Helping Bosnia: Bait-and-switch

The Dayton Peace Project, a non-government organization of academics and former diplomats such as Bruce Hitchner and Donald Hays, has invited the leaders of Bosnian political parties to negotiate about changing the Dayton "constitution" of Bosnia and Herzegovina. The "constitution" needs to change because it is non-functioning, it creates a inefficient and oversized government, invites corruption, stifles progress and causes instability.

Worse than all that, the Dayton "constitution" makes legal the results of aggression and genocide carried out against Bosnia and its people. It was signed by Slobodan Milosevic, the butcher of the Balkans, who died while making a farce of his war crimes trial at the Hague, the president of Croatia Franjo Tudzman, the man who betrayed Bosnian Croats by pledging their territories in Posavina to the newly created "Serb Republic", and by Alija Izetbegovic, who did not have authority under the Constitution of the Republic Bosnia-Herzegovina, the victim of the aggression, to sign such an agreement. The final version, the current "constitution" of Bosnia-Herzegovina signed by the three presidents in Paris was never ratified by the Bosnian parliament as a peace agreement.

The Annex #4 of the agreement, the Dayton "constitution" never passed the proper procedure to be adopted as a legitimate constitution of the country. Simply put, it stopped the war by allowing the war criminals to keep, as ransom, the territory they had occupied and cleansed (Serb Republic). Ironically, the tide of the war had by then quickly and dramatically turned, so that the agreement likely even saved the Serbian aggressors from defeat, instead of saving the lives of their victims.

Therefore, an invitation to change the constitution should be a welcome one.

The problem with this particular invitation is that it is a bait-and-switch -- a tactic used by con artists. The bait -- the promise to talk about changing the constitution for the better. The switch -- further affirmation of the sovereignty of the Serb Republic because its existence will now have been confirmed by a peacetime agreement and passing all proper procedure. The evidence -- Hays and Hitchner already tried this before, and they were luckily thwarted. They launched a campaign with great fanfare, stating the objectives that the entities (Serb Republic and the Federation) would be robbed of all their power and Bosnia would be made whole again, and citizens rights would be restored everywhere in Bosnia. They got the Bosnians to sign a statement in Washington obliging themselves to change the constitution. And then they produced a proposal (with the help of US and British ambassadors to Bosnia, McElhaney and Raycroft) which weakened the entities only cosmetically, but strengthened them in some real ways, including the addition of the mechanism of entity voting, (a total parliamentary veto by the entities), and also the procedure for dissolving the government, parliament and presidency if the entities cannot agree to work together.
In short, that proposal would have enabled, rather than prevented, the dissolution of the country, completing Milosevic's project of creating "greater Serbia". This agreement did not pass parliamentary procedure this spring even though McElhaney and Raycroft pressed Bosnian politicians.

Further, when one major Bosniak party refused to give consent to a particular proposal, it was promptly excluded from the process. That sent a message -- you have to play along, or you can't play at all. The parties were also promised that if they passed the new constitution proposal, a second phase of constitutional reform, would take place to finally correct all the problems and injustices (old and new). We should stop and think about that -- the deal was to consent to everything that the genocidal Serb Republic wanted, so that later, at some point, it would consent to give people their equal rights, and give up its vetoes, and its newly gained right to legally dissolve Bosnia and become a state. And this was based on just the word of Hays and McElhaney, a handshake under the table, nothing on paper, of course. Bait and switch.

If at first you don't succeed, try and try again. As mentioned, Hays and Hitchner sent a letter to the major parties inviting them for more groundbreaking talks discussing constitutional reform and some other things.
Some of their intent is actually revealed by the invitation letter, in which they establish rules for negotiating. Some are run-of-the-mill and aren't worth mentioning. Notable ones are (translated from Bosnian):

1. All participants must demonstrate a degree of trust and respect for the interests, and care for each other. It is not enough to insist that one's own position is correct and right. There has to be a realization that the other side has the right to its own positions.

9. The process of constitutional reform should take into account all the modifications to Dayton to date, as well as its annexes from November 1995.


Number 1 states that nobody is right, and nobody is wrong, and therefore nobody can demand anything that the other side does not wish to give. But there is a clear right and a clear wrong in Bosnia. There we have wrongs such as territories cleansed by genocide, where people who did not lose their lives, did lose their equal rights. We have discrimination by ethnicity written directly into the constitution and the election laws.

If people demand equal rights, and if they demand that they are not discriminated against in the towns of their birth, and if they demand that those parties who massacred their families are not the same ones who govern the places where they live, then they are right, and those who refuse those demands are wrong.

Number 9. By basing the discussion on Dayton and its annexes, which is an illegal document that served as ransom for a country full of hostages, the negotiations gives all the leverage to the Serb Republic. According to Dayton, it has the right to refuse anything it doesn't like. It won that right by means of a horrific genocide and the Dayton deal brokered by Clinton, and there is no chance that it will give it up willingly. Its unquestioned leader, Milorad Dodik, has been saying in the news in Bosnia repeatedly that Republika Srpska would rather not give up any of its current powers to Bosnia, even if it cost it the chance to be ever admitted into the EU. Clearly, if any discussion is held under the assumption of moving forward on the basis of Dayton, we will have a continuing deadlock, and increasing hostility.

As explained, the Dayton "constitution" never was put in force by a legitimate constitutional procedure, but as ransom for genocide, and therefore it is illegal. There may be no legal precedent for this type of situation, but even if something else evolves out of Dayton, it will still be challenged as illegal. Should not the Constitution of the Republic Bosnia and Herzegovina, the victim of aggression, as well as those international laws that deal with aggression, genocide, be on the table instead?

Warren Christopher, Secretary of State during the first Clinton term said once, during the war negotiations: "We cannot pressure Bosnians, the victims. We can pressure only the Serbs." By shifting the pressure onto the victims, McElhaney, Hays and Hitchner effectively push the United States of America into actively preserving the results of genocide in Bosnia, which amounts to taking part in it.

Tarik Borogovac

National Congress of the Republic Bosnia-Herzegovina


2. Bosnia's "Accidental" Genocide

The acquittal of Krajisnik on genocide charges sparks debate in academic circles on the very definition of this gravest of all crimes.

By Edina Becirevic in Sarajevo (TU No 470, 29-Sep-06)

On September 27, Momcilo Krajisnik, a Bosnian Serb leader accused of being one of the architects of ethnic cleansing during the Bosnian 1992-95 war, was found guilty of most of the charges against him and sentenced to 27 years in prison.

The tribunal judges said it had been proved beyond reasonable doubt that he was responsible for the extermination, murder, persecution and deportation of non-Serbs during the war, adding that his role in the commission of these crimes was crucial.

However, rather surprisingly, Krajisnik was acquitted of the most serious charges - genocide or complicity in genocide.

On first reading, this finding sends a somewhat confusing message. According to the summary of the judgment, read by Presiding Judge Alphons Orie on September 27, genocide did take place in Bosnia - however, it was not possible to prove the intent of the perpetrators.

"The Chamber finds that in spite of evidence of acts perpetrated in the municipalities which constituted the actus reus of genocide, the chamber has not received sufficient evidence to establish whether the perpetrators had genocidal intent, that is the intent to destroy, the Bosnian-Muslim or Bosnian-Croat ethnic group, as such," says the summary.

The only reasonable conclusion that could be taken from this formulation is that genocide took place in Bosnia merely by accident.

The term genocide carries a heavy political burden, and scholars of genocide quite often disagree on the interpretation of the 1951 genocide convention.

However, theorists from Raphael Lemkin - the Jewish lawyer who coined the term genocide - to any other contemporary scholar in this field, would agree that it simply does not happen by accident and requires organized action.

In his book "Axis Rule in Occupied Europe", published in 1944, Lemkin specifically says that genocide could - but does not necessarily - mean destruction of a whole nation. However, he says that genocide requires organized planning aimed at destroying the basic foundations of the life of the national groups.

That kind of plan would target "political and social institutions, culture, language, economic existence, as well as the personal security, freedom health, dignity, even lives of individuals that belong to those groups".

Another recognized expert on the subject, Helen Fein, considers that the process of proving genocide involves establishing continuity in attacks aimed at destroying members of a group in an organized manner.

Fein also says that two of the preconditions for genocide are the absence of sanctions for the perpetrators and the existence of ideologies that promote the idea of genocide.

Irvin Louis Horowitz, meanwhile, suggests that genocide is the structural and systematic destruction of innocent people.

None of the leading scholars in the field mentions "accidental genocide".

The judgment against Krajisnik says, "The common objective of the joint criminal enterprise was to ethnically re-compose the territories targeted by the Bosnian-Serb leadership, by drastically reducing the proportion of Bosnian Muslims and Bosnian Croats through expulsion."

It is important to note that this conclusion relies on the "six strategic aims of the Serb people", which were adopted by the Bosnian Serb parliament at a session held on May 12, 1992. The first of these goals - to "separate Serb people from another two national communities" - was announced by Radovan Karadzic, the former Bosnian Serb leader also indicted for genocide by the tribunal.

As parliamentary speaker, Momcilo Krajisnik presided over this session, and he emphasized the importance of the first strategic goal, which he said should be supported by ethnic division on the ground.

It is noteworthy that at this meeting, both Karadzic and Krajisnik were warned by Bosnian Serb military commander General Ratko Mladic, also indicted on genocide charges, that their plans could not be committed without committed genocide.

"People are not little stones, or keys in someone's pocket, that can be moved from one place to another just like that... Therefore, we cannot precisely arrange for only Serbs to stay in one part of the country while removing others painlessly. I do not know how Mr Krajisnik and Mr Karadzic will explain that to the world. That is genocide," said Mladic.

It was obviously to Mladic that the plan envisaged by the Serb political leadership could not be put into practice without a genocide. Even though the general had no qualms about executing this genocidal plan, this quote from the parliamentary transcript shows that Serb military and political leaders were aware of the likely consequences of their actions.

In short, Krajisnik's judgment seems to go against established definitions of genocide, as well as what General Mladic believed the crime to be.

The judges in the Krajisnik case said they had established that genocide took place, but were not convinced the Serb leadership intended to commit it.

They appear to lean toward a school of thought which sets extremely high standards of proof for genocide. To them, the Srebrenica massacre was one "genocidal incident" in the broader ethnic cleansing of Bosnia.

In his book "States of Denial", Stanley Cohen says that avoiding the use of the word genocide in situations of armed conflict gives other countries an excuse not to intervene. This may help explain why the term was so studiously avoided during the Bosnian war.

Edina Becirevic is senior lecturer at the Faculty of Criminal Justice Sciences in Sarajevo.




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