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Genocide
Yugoslavia: a case study
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Nidhi Narain

The Term Genocide: Its Historical Roots
 
 

Raphael Lemkin in 1914 coined the word "Genocide". This term signifies the destruction of a nation or of an ethnic group and implies the existence of a coordinated plan, aimed at total extermination, to be put into effect against individuals chosen as victims purely because they are members of the target group. Lemkin put forward the theory that genocide is not a war crime and that the immorality of such a crime should not be confused with the amorality of war.

Genocide is distinguishable from all other crimes by the motivation behind it. The definition of what constitutes a crime against humanity was established at the Nuremberg Trials, which in its essence was merely an advancement of Montesquieu's ideas on International Law. A war crime was defined as violations of international agreements governing the conduct of war, such as the mistreatment of prisoners of war, attacking medical personnel, and so on.

Lemkin's efforts and his single-minded perseverance brought about "The Convention for the Prevention and the Punishment of the Crime of Genocide." It was voted into existence in 1948 by the UN General Assembly. After stating in Article 1 that Genocide is a crime under International Law the Convention laid down the following definition: Any of the following acts committed with an intent to destroy, in whole or in part, a national, ethical, racial or religious group as such;
 

*Killing members of the said group,
*Causing serious bodily or mental harm to members of the said group,
*Deliberately inflicting on the said group conditions of life calculated to  bring about its physical destruction in whole or in part,
*Imposing measures intended to prevent births within the said group,
*Forcibly transferring children of the said group to another group.
This definition is of significance because some members wanted to add cultural and economic

Genocide and political motivations
 

The Soviet delegation gave the reason that their inclusion would be contrary to the "scientific" definition of Genocide and would reduce the effectiveness of the Convention if it could be applied to any political crime whatsoever. This though has led to an inextricable linkage of the term Genocide with the concentration camps of World War II and the attempted extermination of the Gypsies and the Jews. These became absolute references against which later massacres were measured. Unfortunately, though this single reference to simply incidents of massacre and oppression has been detrimental to the meaning of the term Genocide, insofar as the term not only refers to the killings and oppression but its inherent meaning is in the intent to annihilate an entire race.

Moreover further trivialization has resulted from the overuse of the term, "Holocaust." The original context is religious and means, ' a ritual sacrifice wholly consumed by fire'. It carries the connotations of a societal act in which singles individuals cannot be held to account for their actions because blame is laid on historical fate and unfortunate circumstances.

Alain Destexhe, using the definition that Lemkin gave and that of the Convention, and placing them in the larger category of crimes against humanity, believes that there have been three genuine examples of genocide in the Twentieth Century: the Armenian, the Jewish and the Rwandan. The purpose of this paper, though, is to look at the ethnic cleansing undertaken by the Serbs in the former Yugoslavia in pursuit of a "Greater Serbia." This form of Genocide represents one of the most significant characteristics of Greater Serbian politics currently in effect.

The role and response of International Law will also be considered to facilitate am analysis on whether Genocide as defined by the Geneva Convention actually took place in the Former Yugoslavia. In many ways the way that Genocide was practiced by the Serbs with virtual impunity served as a catalyst and harbinger to the later Rwandan episode. The question is whether the International community will act in any way to stem this tide, or will the 'Rome Statute' adopted by the UN Conference in 1998 on the establishment of an International Criminal Court be simply another empty gesture that fails to punish the guilty?
 
 

A Brief History of Yugoslavia Till The Conflict
 
 

Since the beginning of the Nineteenth Century the idea of Yugoslavia was in evidence in South-East Europe inhabited by the South Slavic peoples. It was a period of migrations and national renaissance in the Balkans. The existence of Serbia and Montenegro as independent states had a favourable impact on the development of the Yugoslav idea.

At the beginning of the Twentieth Century there were significant changes notably in Serbia and Croatia. It gave rise to the evolution of the idea of a common state and the creation of objective conditions to that end. This was helped along by the power politics aimed at the change of the relationship of forces through World War I, the policy of redistribution of colonies, the assertion of the principle of "nationality" that enabled the disintegration of Austria-Hungary, the impact of the October Revolution and the policy of President Woodrow Wilson of the United States of America. On December 1, 1918 the state of Yugoslavia came into existence.

The outbreak of World War II led to the dissolution of Yugoslavia and a collaborating Fascist state was established on Croatian territory. It was a time of massacres and the Genocidal targeting of the Serbs in Croatia by the fascist Ustashe state. Simultaneous massacres of Muslims and Croats were carried out by the Serb Cetniks.

The Communists under Tito in 1941 gathered all the Yugoslav people together to establish the Yugoslav Federation based on the principle of decentralization and the autonomy of the Provinces and the Republics. However Yugoslavia was the object of the policy of spheres of interst as envisaged under the Stalin and Churchill Agreement of October 1944.

The crisis began with the failure of the 1966 economic reforms and continued with the 1967 constitutional crisis which led to the promulgation of the 1974 Constitution. Under this, Republics became "nation-states" whose relations were based on the principle of consensus amongst the eight constitutive parts of the federation.

Tito's death in 1980 increased troubles in Kosovo, the population of which was predominantly Albanian. The Albanian uprising to the status of a Republic was suppressed militarily. Moreover, the collapse of the Yugoslav economy perpetrated a form of ultra-nationalismin Serbia and the emergence of a Milosevic-initiated "anti-bureaucratic" revolution got connected to fighting against decentralisation. A combination of a rabid nationalism and a fight against bureaucracy was what Milosevic capitalised upon. Eliminating his adversaries in Kosovo, Vojvodrina and Montenegro was easy. He broke the balance which ahd merged under Tito and one bloc emerged which controlled the federation.

The Serbian Nationalists' brought back memories of the 1941 genocidal targetting of the Serbs and revived hatreds against the people who were involved with the massacres. The media joined in with such propaganda especially against Tito by constantly reminding the Serbian people of his "oppression" on them. The media referred to a "Vatican, German, Islamic, Comicon plot".

Terzic considers that viewed from an historical standpoint the Austro-Hungarian occupation of Bosnia and Herzegovina in 1941 served as a model of modern colonization and a "programme of the civilizing mission" in the service of the "Western spirit" in the Balkans.

The conflict had an additional geo-political factor. The European community also played an important part in the disintegration of the Socialist Federal Republic of Yugoslavia basically because of the interests of France and Germany. Initially, Yugoslavia had retained the socialist system and an ideological closeness with the USSR but it also had a strategic alliance with the US which had an "interest in keeping Tito above water." With the end of the Cold War, the SFRY lost its strategic importance to both the USSR and the US leading to France and Germany playing a greater role in influencing internal politics. As evidenced by their actions in the later conflict, especially Germany's preemptive recognition of breakaway Republics, they had no interest in keeping the SFRY as a functioning unit.

To conclude, the changes in the character of relations both within the Yugoslav Federation as well as the enormous changes taking place in the International community at the end of the Nineteenth and the beginning of the Twentieth century made possible the existence of the SFRY. Events of such dramatic importance, once again at the end of the Cold war, led to the disintegration of the SFRY.

This paper examines ethnic cleansing by the Serbs in Yugoslavia in the light of the aforesaid historical realities. Ethnic realities prevented Serbian idealogues from achieving the goal of "all Serbs, one country" through political dialogue and therefore ethnic cleansing was used. The memory of the 1941massacres of Serbs was a useful emotional tool to justify these "reciprocal massacres".
 
 

Ethnic Cleansing as a Form of Genocide
 
 

The Genocide Convention defined genocide to mean specified acts committed with an intent to destroy , in whole or in part, a national , ethnic, racial or religious group.

The "Greater Serbia" plan witnessed the overt distribution of arms to Serbs living in Croatia and Bosnia & Herzegovina. Settlement of Serbs in ravaged and militarily occupied territories and the formation of local governments, "Serbian Krajina",and the preparations for "referendums" on the annexation of "liberated" territories to Serbian Yugoslavia were extensively carried out. Such practices were part of the larger plan of " all Serbs, one country" which explains their role in the subsequent events. This plan categorically violates Article II of the Convention.

In 1986, Slovenia saw an increase in parties and also backed the Kosovar Albanians who were subject to Serb attacks. Croatia also witnessed an increase in political parties which it tolerated. The 1990 Croatian elections, though, served to aggravate tensions between Croatia and Serbia as Serbs constituted 12% of the Croatian population and felt threatened by the Nationalist President.

The new Croatian Constitution stated that it was the State of Croatian people and other nationalities, thus relegating Serbs to being second grade citizens. As a direct consequence, propaganda from Belgrade began to highlight the 1941 genocidal massacres claiming that Croatia was picking up from where the Ustachi government had left off. The result was an uprising of the Serbs and massacres of the Croats and the Federal army reacted to Slovenias and Croatias declarations of independence ion 1990 by military repression. This was in violation of the principle of self determination and was also the beginning of the military phase of the conflict.

After World War II, Bosnia and Herzegovina was a state with a complex distribution of different peoples, 44%Bosnian Muslims, 31% Serbs, 17-18% Croats plus people of other racial backgrounds. It was ethnically diverse, owing to the fact that it had not witnessed ethnic cleansing and religious persecution like the other parts of the Balkans. During the Ottoman Empire, the Muslims had been part of the ruling class and after the collapse of the Empire they put their educational qualifications to good use. Therefore, before 1992, a higher percentage of Muslims lived in the cities than the Serbs or Croats. So, in a sense, the conflict was also a rural-urban conflict, nothing so highlights this as the fact that the second-in-command of the Bosnian forces was a Serb.

The 1990 elections in Bosnia and Herzegovina were won by three Nationalist parties with conflicting interests; the most important of these, the Serbian Democratic Party was opposed to its independence. The Yugoslav People's Army(YPA) had already occupied a third of the Croat territory and started the process of settling Serbians on the Croat land. The Serbian Democratic party supported this and also that the YPA was using armed force to wipe out the Croats and Muslims that had resided on the land before Serbian occupation. This was the first move in a long game with the intention of dominating all the republics of Yugoslavia to bring them under the control of the Serbian country. The Federal army then began the physical occupation of Bosnia and Herzegovina to us it a s a base for its final assault against Croatia. As Bosnia and Herzegovina had a mixed population, it was a softer target than Croatia which was seen as the real opponent. As the Federal army moved onwards, it began using the tactics of ethnic cleansing. By 1991, these became visible to the outside world.

The haunting scenes from the Trnopolje concentration camp that were revealed on August 5,1992 forced the world to acknowledge the fact that genocide was being committed by the Serbs there and in Omarska and Manjca. Muslims and Croats had been targetted for liquidation by the Serbian paramilitary forces. Crimes against humanity had been committed against the peoples of Prijedor, Sanski and Kljnic by these forces. Persons responsible for issuing and implementing orders for executions were clearly identified. The massacre in Srebenica from July12 till July 18 in and around the UN declared "safe area" resulted in the death of 8000 people when the UNPROFOR commander, General Janvier handed over people he was supposed to be guarding to the Serbian commander, General Ratko Mladic.Helsinki Watch, Amnesty International and other human rights organizations asked the UN to organize International War Crimes trials.

In May 1993, the Security Council established the International Tribunal for the Prosecutions of Persons responsible for serious violations of humanitarian law in the territory of the former Yugoslavia since 1991. It issued its first indictment in 1994. Later the International Criminal Tribunal indicted Karadzic and Mladic for genocide, crimes against humanity and grave breaches of the Geneva Convention for their actions at Srebenica.

On November 21, 1995 the Dayton Peace Agreement brought an end to inter ethnic strife taking place in Bosnia and Herzegovina. It laid down that the Republic of Bosnia and Herzegovina would continue as a sovereign state within its then internationally recognised borders. It would be composed of the Federation of Bosnia and Herzegovina which would control 51%of the territory ,and the Serb Republic which would control the other 49%. The capital, Sarajevo, would be reunified within the Muslim-Croat federation. Moreover, the Constitution would guarantee " the highest level of human rights". The accord compels the parties to "cooperate fully" with international investigation and prosecution of War Crimes. This pertains to Croatia and Serbia also.
 
 

Response of International Law to Genocide in Yugoslavia
 
 

In 1993 the Government of the Republic of Bosnia and Herzegovina filed an application before the International Court of Justice alleging violations of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide by the Government of the Federal Republic of Yugoslavia.

In 1996 the Court on the basis of the complaints filed by Bosnia and Herzegovina against the FRY and in the face of denials by the FRY, ruled that a legal dispute existed between the two parties. The Court ruled that under Article I of the Convention, the Convention is applicable without reference to circumstances linked to the domestic or international nature of the conflict. The rights and obligations of the Convention are ergo omnes.

It observed that reference in Article IX to " the responsibility of a State for genocide" does not exclude any form of state responsibility.

FRY argued that the events in Bosnia and Herzegovina to which the application referred to constituted a civil war and thus no international dispute existed within the terms of Article IX .

The Court confirmed that in fact there existed an international dispute and held that it could not find that the Application was inadmissible on the sole ground that, to decide the dispute,it would be impelled to take account of events that may have occurred in the context of a civil war.

However, the ICJ did not address a potential bar to its jurisdiction as to whether the FRY was a member of the UN, a prerequisite for the ICJ to exercise its jurisdiction under Article 35I of the Statute.

The significance of the Court's judgement lies predominantly in its decision that it has jurisdiction ratione materiae over a dispute between two nations concerning alleged breaches of the Genocide Convention.

The Tadic decision of the Appeals Chamber of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law in the territory of the former Yugoslavia since 1991, shows the renewed vitality of international humanitarian law. The Appeals Chamber decide that it has subject matter jurisdiction over the Tadic case, i.e. the use of opinio juris in the application of international customary law over this case.

By passing such judgements, it can be said that the ICJ has in effect acknowledged that crimes against humanity were conducted by the former Republic of Yugoslavia. The use of armed force, prevention of intermarriages between Serbs and Croats, the resettlement of Serbs in other Republics, massacres of the Muslims and the Catholics and the existence of concentration camps are blatant violations of Article II of the Genocide Convention. Karadzic and Mladic have been charged with committing the act of Genocide in Srebenica. Tadic was also indicted. Who will indict the UNPROFOR commander, General Janvier, for his secret dealings with the Bosnian Serbs is a question left unanswered.

The failure of the Euro-Atlantic powers to label the crimes against humanity committed upon the Croats and Bosnian Muslims by the Serbs as genocide reflects their vested interests in limiting the criticism against Serb actions. Moreover, it leads to a new "balkanization" of an area that is no longer of vital geo-political interest in the absence of a Soviet threat.

Conclusion

Tracing the roots of the definition of the term Genocide, as well as looking at the historical and legal standing of the conflict that took place in the former Yugoslavia it becomes obvious that Genocide was openly and blatantly committed. Nevertheless there is little or no expression of this fact in the dialogue of the world community. The fact that there were concentration camps in Europe for the first time since World War II has been conveniently forgotten. The question that has to be asked is, who is this convenient for, and why?

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