Policy Documentation Center

International Institute for Middle East and Balkan Studies, IFIMES

  
 
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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. 
 
 
WAR CRIMES AND GENOCIDE: 
 
CAN THEODOR MERON PRESERVE ICTY'S 
REPUTATION? 
 
 
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 
  
 
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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. 
 
 
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.   
 
RESPONSIBILITY LIES WITH THEODOR MERON  
The partial acquittal in the Karadžić case has encouraged President of the Republika 
Srpska entity of Bosnia and Herzegovina Milorad Dodik, who succeeded  Radovan 
  
 
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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. 
 
 
“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? 
 
CROATIAN STATE ATTORNEY'S OFFICE PROTECTS MILORAD DODIK? 
As long as it has to deal with persons such as Dodik and the like, Bosnia and 
Herzegovina cannot 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 
  
 
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other parts of Bosnia and Herzegovina now have their ally – Judge O-Gon Kwon and 
some of his colleagues. 
 
The IFIMES International Institute warns it is now high time the chief State Attorney 
of the Republic of Croatia Mladen Bajić pressed charges against Milorad Dodik for 
having committed or instigated the war crime. According to our information chief 
State Attorney Bajić holds all the relevant evidence to initiate the prosecution of 
Milorad Dodik. Should he lack some evidence, IFIMES possesses the relevant 
documents proving Dodik's involvement in the war crime, which it can submit to 
chief Bajić.  
 
 
Although ICTY was initially established to deal with war crimes in Bosnia and 
Herzegovina, the latest partial judgement in the Radovan Karadžić case has opened 
Pandora's Box and brought Bosnia and Herzegovina back to where it was as the 
beginning. The effects achieved by ICTY have collapsed like a house of cards. This 
huge mechanism, which had once fought a brave fight together with its founder and 
the countries from the region in order to realise its mandate, has today sunk into 
despair of judicial bureaucratism, self-complacency and mere academic discussion. 
The correction of mistakes in the partial acquittal of Karadžić and the resignation of 
Judge O-Gon Kwon from the Radovan Karadžić case and from ICTY could return 
some of the lost reputation of ICTY. 
 
Ljubljana, July 17, 2012  
                                
                                                                      International Institute for Middle-East and     
                                                                      Balkan Studies (IFIMES) - Ljubljana                                                               
                                                                      Directors: 
                Bakhtyar Aljaf                                                                
ICTY and BOSNIA AND HERZEGOVINA 
                Zijad Bećirović    
                                                                                                                         
        


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