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A few days after the International Court of Justice has delivered its advisory opinion on Kosovo’s independence its website is still not operating normally. The situation is seen by many as an important precedent for people seeking independence. While many media have seen the judgement as the ICJ giving the green light to independence of Kosovo, the topic was the legality of Kosovo’s declaration of independence.
The ICJ has now declared that that declaration was legal or to put it more carefully (as the Court did) no international legal provision can be found to doubt the legality of the declaration. This is very good news for the government (it seems we no longer have to add brackets) of Kosovo. Especially since it emerged earlier this week that the trial against Ramush Haradinaj, Kosovo’s former prime minister, needs a partial re-trial. Read the full article
Last week the biggest massacre on European soil since the Second World War was commemorated. While the massacre occurred fifteen years ago, victims and relatives of those killed near Srebrenica have been relentless in their quest for justice. Relatives have already brought civil cases against the Dutch state and the UN. Both have thus far not led to the results the relatives had hoped for.
Relatives are now filing criminal complaints against three Dutchbat peacekeepers (the Dutch battle group operating under the UN flag). The charges are assisting in genocide, war crimes and murder.
It is interesting, but perhaps not very surprising that one of the charges is assisted genocide, which does not require that the peacekeepers in question possessed genocidal intent, that is the intent to destroy in whole or in part a racial, ethnic, religious or national group. It would be sufficient to prove that the peacekeepers knew of the genocidal intent of the Serbian soldiers at Srebrenica. Even though the bar is not set as high as in other cases of genocide (where the perpetrator’s intent needs to be proven, it may still be difficult to prove that the peacekeepers in question had knowledge of the intent. As the International Court of Justice has recognized that genocide has taken place in Srebrenica and the International Tribunal for the former Yugoslavia has also convicted General Krstic of genocide, most of the ground work seems to be done. However, they do not prove that the Dutch peacekeepers in question were aware of the genocidal intent of the Serbian perpetrators. Knowledge of genocidal intent will be difficult to prove as Bosnia has not known widespread acts of genocide similar to those in Rwanda. While there have been numerous (and serious) acts committed in Bosnia that fall under either war crimes or crimes against humanity, most acts are usually cited as falling under ‘ethnic cleansing’ which does not have a clear legal counterpart. It will therefore be hard to use other atrocities in Bosnia to argue that Dutch peacekeepers knew that the perpetrators intended to destroy the Muslim population as those other atrocities have not been named genocide. There was no overall pattern that could lead to the Dutch peacekeepers concluding that genocide would occur. In fact, ‘Srebrenica’ was the only place in Bosnia where the acts committed were recognized as genocide.
Whether because of this case, or one of the civil cases, the relatives of those killed at Srebrenica will ensure that all the legal routes will be taken in order to hold accountable those that played a role (if even a minor one) in the Srebrenica genocide.