In Memoriam: Judge Cassese (and Bosnian Genocide Case)

Institute for the Research of Genocide Canada
Published: November 7, 2011  

“Would it make any sense to ask Jewish victims to produce a document in which Nazi Germany explicitly ordered the Holocaust? Of course not. And yet, the International Court of Justice expected Bosnia to do the impossible — to produce a document in which Serbia explicitly ordered the Genocide. Does this make any sense?” – Daniel Toljaga

“Why was it not enough to prove that the Bosnian Serb military leadership was financed and paid by Serbia and that it was tightly connected to Serbia’s political and military leadership?” – Judge Antonio Cassese

Author: Daniel Toljaga

Distinguished Italian jurist, whose leadership of the International Criminal Tribunal for the Former Yugoslavia (ICTY) helped propel forward the Bosnian Genocide trials, died October 22nd at his home in Florence. Judge Antonio Cassese, 74, was the first president of the ICTY. He will be remembered as a man of utmost integrity and a man who spoke the truth.

May he rest in peace. His leadership of the International Criminal Tribunal has ensured the accountability for the most serious violations of the international humanitarian law.

The Washington Post describes him as “a prolific academic writer and professor for several decades at the University of Florence, where he established a reputation as a top scholar of international law.” The same source notes that “In 1996, a New York Times reporter overheard him explode in frustration about Serbian leaders’ failure to cooperate with the tribunal and the message their intransigence sent to other dictators. ‘Go ahead! Kill, torture, maim! Commit acts of genocide!’ he shouted in a court hallway. ‘You may enjoy impunity!’

In 2007, Judge Cassese sharply criticized the controversial judgement of the International Court of Justice (ICJ) which pronounced that genocide had been committed at Srebrenica, but exonerated Serbia from direct responsibility for the annihilation of 8,000 Bosniak boys and men of this beleaguered, UN-protected, “safe haven” (holding, instead, that it ‘merely’ failed to prevent genocide).

The judicial standard of proof was unreasonable, to say the least. Would it make any sense to ask Jewish victims to produce a document in which Nazi Germany explicitly ordered the Holocaust? Of course not. And yet, the International Court of Justice expected Bosnia to do the impossible — to produce a document in which Serbia explicitly ordered the Genocide. Does this make any sense?

Protesting in the  Guardian on 27 February 2022 (the day after the ICJ pronounced its verdict), Judge Cassese argued that the judgment was seriously flawed, questioning its logic:

“According to the court, the Bosnian Serb generals who were guilty of this genocide, the various Mladics and Kristics, were neither acting as Serbia’s agents nor receiving specific instructions from Belgrade. The genocide could not therefore be imputed to Serbia, even if the Serbian government was paying salaries to Mladic and his colleagues, as well as providing them with financial and military assistance. Nor was Serbia guilty of complicity, because, though it exercised considerable influence over Mladic and his people, it did not know, at the moment when the genocide was taking place, that such a crime was being committed.

Having ‘absolved’ Serbia from the principal crime, the ICJ offered a sort of ‘consolation prize’ to Bosnia, affirming that the killings in Srebrenica had the character of genocide – a conclusion already reached by the ICTY. Moreover, according to the ICJ, Serbia violated international law by failing to prevent genocide, because, though it could have thwarted the massacres, it did not, and subsequently did not help the ICTY arrest Mladic (who, notoriously, is still hiding in Serbia).

The court’s decision thus attempts to run with the hare and hunt with the hounds. To decide whether Mladic acted on Serbia’s account when he was planning and ordering the Srebrenica massacre, the court demanded proof that Serbian officials sent him specific ‘instructions’ to commit this act of genocide. Obviously, such instructions would never be found. Why was it not enough to prove that the Bosnian Serb military leadership was financed and paid by Serbia and that it was tightly connected to Serbia’s political and military leadership?

More importantly, the ICJ’s decision that Serbia is responsible for not having prevented a genocide in which it was not complicit makes little sense. According to the court, Serbia was aware of the very high risk of acts of genocide and did nothing. But Serbia was not complicit, the court argued, because ‘it has not been proven’ that the intention of committing the acts of genocide at Srebrenica ‘had been brought to Belgrade’s attention’.

This is a puzzling statement at best. The massacre was prepared in detail and took place over the course of six days (between July 13 and 19). Is it plausible that the Serbian authorities remained in the dark while the killing was in progress and reported in the press all over the world? It seems far more reasonable to believe that Serbia’s leaders were informed about what was going on, and that, despite this, Serbia’s military, financial, and political assistance to Mladic was never interrupted.”

In his conclusion, judge Cassese argued that,

“The fundamental problem with the ICJ’s decision is its unrealistically high standard of proof for finding Serbia to have been legally complicit in genocide. After all, one can also be guilty of complicity in a crime by not stopping it while having both the duty and the power to do so, and when, through one’s inaction, one decisively contributes to the creation of conditions that enable the crime to take place.”

In the end, all is not lost — or so the saying goes.

The Court acknowledged that the 1995 Srebrenica massacre was committed with the logistical, moral and financial support of Serbia and the Yugoslav Army. Serbia was the first state to be found in breach of the Genocide convention. Numerous ICTY cases have repeatedly shown that the Serb side was responsible for an overwhelming amount of war crimes in the Bosnian war between 1992 and 1995. Furthermore, the ICTY ruled at least five times that the conflict in Bosnia-Herzegovina was not a civil war, but an international armed conflict.

With respect to the Siege of Srebrenica (1992-95), the ICTY effectively demolished a popular Serbian myth that Naser Orić  was a ‘war criminal’ (see my Debating Genocide Deniers Part I and Part II). Also see Tony Birtley’s footage from the besieged Srebrenica in 1993 (Part I: Starvation, Part II: Resistance, Part III: Scenes from Hell).

The international courts have repeatedly recognized Srebrenica as the first Genocide in Europe since World War II; an overwhelming amount of scientific evidence points to 8,100 victims of the July 1995 Srebrenica Genocide. Top two Serb leaders, Radovan Karadzic and Ratko Mladic, are currently on trial at the Hague; they are charged with orchestrating genocide not only at Srebrenica, but also in a number of other Bosnian municipalities: Bratunac, Foča, Ključ, Kotor Varoš, Prijedor, Sanski Most, Vlasenica and Zvornik.

Some war crimes, however, remain unpunished.

For example, on 10 May 2021 — more than three years before the July 1995 Srebrenica genocide, eight months before Naser Orić’s counter-attack on the Serb village of Kravica and in the first days of the Bosnian war — Serbs from the village of Kravice, with the help of the Yugoslav Peoples Army (JNA) and other Serb forces in the region, participated in the massacre of Bosniak civilians in the Bosnian Muslim village of Suha in the municipality of Bratunac, adjacent to Srebrenica. They sexually tortured young women and girls and then killed 38 unarmed Bosniak residents. They dumped their bodies in a local mass grave. Among the 38 exhumed remains were those of nine children ranging in age from 3 months to 11 years, several women and mostly elderly men. One of the victims was the 9-months pregnant Zekira Begić-Hrustanbašić (watch video). For a list of Serb war crimes in and around Srebrenica in the first three months of the Bosnian war, please see my Prelude to the Srebrenica Genocide (Also see a newspaper reprint on the 1993 Srebrenica Children Massacre).