The Legal Significance of the Council of Ministers of Serbia and Montenegro Accepting Responsibility for the Srebrenica Massacre

by Professor Francis A. Boyle

Attorney for the Mothers of Srebrenica and Podrinja
General Agent for the Republic of Bosnia and Herzegovina before The International Court of Justice with Extraordinary and Plenipotentiary Powers (1993-94)
24 June 2005

On 15 June 2005 the Council of Ministers of the State of Serbia and Montenegro, which is the joint government of the only two former Yugoslav "republics" that remain together in one State after the disintegration of the former Yugoslavia, condemned the Srebrenica massacre of July 1995 in an official Statement that provides in relevant part as follows, as translated into English:

This Statement is an official Admission against Interest by the Council of Ministers that the State of Serbia and Montenegro is legally responsible for the massacre at Srebrenica.  This Statement will bind the State of Serbia and Montenegro at the International Court of Justice in Bosnia's lawsuit for genocide against the State of Serbia and Montenegro, which I personally sued for the Republic of Bosnia and Herzegovina on 19 March 1993 under its then name of "Yugoslavia (Serbia and Montenegro)."  Bosnia's World Court lawsuit for genocide is against the State of Serbia and Montenegro, not against the previous government under the Milosevic regime.  At the World Court this is a question of State responsibility under international law.
 
By blaming the Srebrenica massacre on the previous government, the current government of the State of Serbia and Montenegro has officially conceded the legal responsibility of the State of Serbia and Montenegro for the massacre at Srebrenica.  Furthermore, the International Criminal Tribunal for the former Yugoslavia (ICTY) has already found that the Srebrenica massacre constituted the international crime of genocide in violation of the 1948 Genocide Convention.  Thus, the current government of the State of Serbia and Montenegro has incriminated the State of Serbia and Montenegro for the genocide at Srebrenica.  Notice that in its official Statement even the current government of the State of Serbia and Montenegro has referred to the Srebrenica massacre as a "war crime."   
 
I cannot overstate the decisive significance of this Admission against Interest by the current government of the State of Serbia and Montenegro:  
 
(1) Bosnia has now clinched its genocide lawsuit against the State of Serbia and Montenegro at the International Court of Justice.
            
(2) The Honorable Carla Del Ponte will now be able to clinch her genocide prosecution of Milosevic at the ICTY for the Srebrenica massacre, which she so kindly brought at the specific request of the Mothers of Srebrenica and Podrinja.
 
The Bosnian government must file this Statement with the International Court of Justice in The Hague as part of its genocide lawsuit against the State of Serbia and Montenegro in both the original Serbian language of the text as well as an English translation in accordance with the Rules of the World Court.  On behalf of my clients the Mothers of Srebrenica and Podrinja, I have already filed these documents with the Honorable Carla Del Ponte, and advised her on the meaning and significance of this Statement for her prosecution of Milosevic for the Srebrenica genocide.  We have offered to assist her in this noble endeavor to achieve international justice by any means possible.  
 
On behalf of my clients the Mothers of Srebrenica and Podrinja, we hereby express our deepest and most sincere gratitude to the Honorable Carla Del Ponte for all that she has done for the victims, the survivors, and the next of kin of the Srebrenica genocide.  We certainly understand, respect, and support her principled decision to refuse to attend the tenth anniversary of the Srebrenica genocide because the United States, the NATO member states, the United Nations, and the European Union member states have all so far refused to apprehend for prosecution the two major war criminals and genocidaires Karadzic and Mladic, who together with Milosevic are primarily responsible for the Srebrenica genocide.  We look forward to someday having the first two international criminals and fugitives from justice join their former boss Milosevic in The Hague before the ICTY.  
In this regard, the current government of the State of Serbia and Montenegro has also incriminated the State of Serbia and Montenegro for providing continuing "protection of the war criminals" and genocidaires Mladic and many others:  "Any protection of the war criminals, for any reason, is also a crime."  Such "protection" of the Srebrenica genocidaires Mladic and others by the current government of the State of Serbia and Montenegro violates its solemn obligation under Article VI of the 1948 Genocide Convention:
 
Article VI.  Persons charged with genocide or any of the other acts enumerated in article III shall be tried by a competent tribunal of the State in the territory of which the act was committed, or by such international penal tribunal as may have jurisdiction with respect to those Contracting Parties which shall have accepted its jurisdiction.
 
Since the government of Serbia and Montenegro still stands in gross violation of its solemn obligations under the Genocide Convention, the Mothers of Srebrenica and Podrinja emphatically condemn, reject and oppose the invitation to Tadic and his "delegation" from the government of Serbia and Montenegro to desecrate the Srebrenica genocide at Potocari on July 11, 2005.  Historically, this would be akin to inviting the Nazis to Auschwitz on Holocaust Remembrance Day in order to somehow "commemorate" the Jews whom they had exterminated.  To be sure, the Nazi Holocaust against the Jews exceeded the Serbian government's genocide against the Bosnians by a factor of twenty-four.  But the legal and moral principles at stake are identical.  Never again!