Refuting Bosnian Genocide Denial

Previously, I had encountered and refuted this completely disingenuous, deceptive and bogus argument against labeling a genocide as what it truly is, when I was the lawyer for the Republic of Bosnia and Herzegovina arguing their genocide case against Yugoslavia before the International Court of Justice, which is otherwise known as the World Court.[1] There the genocidal Yugoslavia was represented by Shabtai Rosenne from Israel as their lawyer against me. Rosenne proceeded to argue to the World Court that since he was an Israeli Jew, what Yugoslavia had done to the Bosnians was not the equivalent of the Nazi Holocaust against the Jews and therefore did not qualify as “genocide” within the meaning of the 1948 Genocide Convention.

I rebutted Rosenne by arguing to the World Court that you did not need an equivalent to the Nazi Holocaust against the Jews in order to find that an atrocity constituted “genocide” in violation of the 1948 Genocide Convention. Indeed the entire purpose of the 1948 Genocide Convention was to prevent another Nazi Holocaust against the Jews. That is why Article I of the Genocide Convention clearly provided: “The Contracting Parties confirm that genocide, whether committed in time of peace or in time of war, is a crime under international law which they undertake to prevent and to punish.” (Emphasis supplied.) You did not need six million dead human beings in order to constitute “genocide.”

Furthermore, in support of my 1993 genocide argument to the World Court for Bosnia, I submitted that Article II of the 1948 Genocide Convention expressly provided: “In the present Convention, genocide means any of the following acts committed with the intent to destroy, in whole or in part, a national, ethical, racial or religious group, as such…” (Emphasis supplied.) In other words, that to be guilty of genocide a government did not have to intend to destroy the “whole” group as the Nazis intended to do with the Jews. Rather, a government can be guilty of genocide if it intends to destroy a mere “part” of the group. Certainly Yugoslavia did intend to exterminate all Bosnian Muslims if they could have gotten away with it, as manifested by their subsequent mass extermination of at least 7,000 Bosnian Muslim men and boys at Srebrenica in July of 1995.

But in 1993 it was not necessary for me to argue to the World Court that Yugoslavia intended to exterminate all the Bosnian Muslims. Rather I argued to the World Court that at that point in time the best estimate was that Yugoslavia had exterminated about 200,000 Bosnians out of the population of about 4 million Bosnians, including therein about 2.5 million Bosnian Muslims. Therefore, I argued to the World Court that these dead victims constituted a “substantial part” of the group and that the appropriate interpretation of the words “or in part” set forth in Article II of the Genocide Convention should mean a “substantial part.”

The World Court emphatically agreed with me and rejected Rosenne’s specious, reprehensible, and deplorable arguments. So on 8 April 1993 the International Court of Justice issued an Order for three provisional measures of protection on behalf of the Republic of Bosnia and Herzegovina against Yugoslavia that were overwhelmingly in favor of Bosnia as follows:

52. For these reasons,

The COURT,

Indicates, pending its final decision in the proceedings instituted on 20 March 1993 by the Republic of Bosnia and Herzegovina against the Federal Republic of Yugoslavia (Serbia and Montenegro), the following provisional measures:

A. (1) Unanimously,

The Government of the Federal Republic of Yugoslavia (Serbia and Montenegro) should immediately, in pursuance of its undertaking in the Convention on the Prevention and Punishment of the Crime of Genocide of 9 December 1948, take all measures within its power to prevent commission of the crime of genocide;

(2) By 13 votes to 1,

The Government of the Federal Republic of Yugoslavia (Serbia and Montenegro) should in particular ensure that any military, paramilitary or irregular armed units which may be directed or supported by it, as well as any organizations and persons which may be subject to its control, direction or influence, do not commit any acts of genocide, of conspiracy to commit genocide, of direct and public incitement to commit genocide, or of complicity in genocide, whether directed against the Muslim population of Bosnia and Herzegovina or against any other national, ethnical, racial or religious group;

IN FAVOUR: President Sir Robert Jennings; Vice-President Oda; Judges Ago, Schwebel, Bedjaoui, Ni, Evensen, Guillaume, Shahabuddeen, Aguilar Mawdsley, Weeramantry, Ranjeva, Ajibola;

AGAINST: Judge Tarassov [from Russia];

B. Unanimously,

The Government of the Federal Republic of Yugoslavia (Serbia and Montenegro) and the Government of the Republic of Bosnia and Herzegovina should not take any action and should ensure that no action is taken which may aggravate or extend the existing dispute over the prevention or punishment of the crime of genocide, or render it more difficult of solution.

This World Court Order for the indication of provisional measures of protection was the international equivalent of a U.S. domestic Temporary Restraining Order and Injunction combined.

The Order was binding international law. Under the terms of United Nations Charter Article 94(2), the World Court submitted this Order to the U.N. Security Council for enforcement—just like any Judge would submit its Order to a Sheriff for enforcement. For political reasons the Security Council failed and refused to enforce this World Court Order prohibiting genocide against Yugoslavia on behalf of the Republic of Bosnia and Herzegovina, a U.N. member state.[2]

Consequently, I decided to return to the World Court for a second Order. I knew full well that no government had ever won two such Orders in one case in the entire history of the World Court going back to when it was founded in 1921. But I had no alternative: Yugoslavia was exterminating the Bosnians right before my very eyes. I could watch the Bosnian genocide live on CNN.

Once again Rosenne argued against me. This time he was assisted by three Serbian Lawyers, whom I dismissively referred to as Moe, Larry, and Curly—the Three Stooges. I won that Second Order for an additional three provisional measures of protection for the Republic of Bosnia and Herzegovina against the genocidal Yugoslavia that was overwhelmingly in favor of Bosnia from the World Court on 13 September 1993 by 13 votes to 2, 13 votes to 2, and 14 votes to 1, respectively. This was the first time ever in the history of the World Court going back to 1921 that any government had ever won two such Orders in one case. I had won six different provisional measures of protection from genocide on behalf of the Republic of Bosnia and Herzegovina against Yugoslavia in under six months.

Pursuant to my advice and with the authorization of President Izetbegovic, on 10 November 1993 I was instructed by the Bosnian Ambassador to United Nations (later Foreign Minister) Muhamed Sacribey to institute legal proceedings against Britain for violating the Genocide Convention and the Racial Discrimination Convention. On 15 November 1993 Ambassador Sacribey convened a press conference at U.N. Headquarters in New York in which he stated Bosnia’s solemn intention to institute legal proceedings against the United Kingdom for genocide. Later that day, I filed with the World Court a Communication that I had drafted, which was entitled Statement of Intention by the Republic of Bosnia and Herzegovina to Institute Legal Proceedings Against the United Kingdom Before the International Court of Justice. Ambassador Sacribey had also distributed this Statement at his press conference in New York [3]

Since Ambassador Sacirbey was not a professional international lawyer, immediately after his press conference to announce our genocide lawsuit before the World Court against Britain held at U.N. Headquarters in New York City, he referred all the world’s news media to me in order to answer any questions they might have. Soon thereafter I was contacted by the British news media conglomerate Reuters News Agency asking for an extensive interview on this entire matter that would be used as a background information source to be provided to the rest of the British news media in order to prepare their own stories on it. I readily agreed to give this extensive interview to Reuters.

During the course of this interview with Reuters I spent a good deal of time explaining the historical origins of the 1948 Genocide Convention originating out of the Nazi Holocaust against the Jews. When I was finished giving this brief historical disquisition, the Reuters reporter asked me: “Professor Boyle, are you Jewish?” I immediately responded: “No, I’m Irish. But my People know all about genocide!”

My comment was front page news headlines all over Britain the next day. The most lurid headline came from the tabloid Daily Mail in bold and capital letters on the front page: “IRISH LAWYER JOINS FIGHT AS MUSLIMS CRY “MURDER.”[4] That headline warmed the inner recesses of my Irish heart and soul and brought a big smile to my face: “When Irish eyes are smiling…” Their story continued with me saying: “It’s always the case where there has been an underdog in the world, you have always found people of Irish descent with the underdog. After having suffered so much, Irish people can immediately empathise with people who suffer all over the world.”

On 30 November 1993, by telephone I personally informed Ambassador Sacirbey in Geneva that these documents were ready to be filed with the World Court at any time. But by then it was too late. In immediate reaction to our public Statement of Bosnia’s intention to institute legal proceedings against the United Kingdom on 15 November 1993 for genocide, a Spokesman for the British Foreign Office said that this announcement “would make it difficult to sustain the morale and commitment of those [British troops and aid workers] in Bosnia in dangerous circumstances.” The report continued: “Foreign Office sources said there were no plans to remove the Coldstream Guards, who have just begun a six-month deployment to Bosnia. But Whitehall would take account of whether the Bosnian threat of legal action was in fact taken to the International Court of Justice in The Hague.”[5] At that time all humanitarian relief supplies for the Bosnians including food was flown in by military transports from Ramstein airbase in Germany to Sarajevo airport, which was then under the control of British and French troops. I had no doubt that in the harsh Winter of 1993 Britain would have starved to death 2.5 million Bosnians just as it had previously starved to death 1 million Irish. For these reasons of severe duress and threats perpetrated by Britain and other European states, the Republic of Bosnia and Herzegovina was forced to withdraw from those World Court proceedings for genocide against the United Kingdom by means of concluding with it a coerced “Joint Statement” of 20 December 1993.

Before Britain threatened Bosnia with mass starvation during the harsh Winter of 1993, I was then in negotiations with the World Court for their convening an Emergency Hearing on my Request for provisional measures of protection against Britain for aiding and abetting genocide against Bosnia that was to take place sometime before Christmas Day 1993. In other words, I had effectively “won” the argument: The World Court was going to hear me out on my claims against Britain for aiding and abetting genocide against Bosnia.

I am certain that I would have won something for Bosnia against Britain from the World Court on the basis of the 1948 Genocide Convention. That is precisely why Britain threatened to starve the Bosnians to death during the harsh Winter of 1993. Be that as it may, I am the only Lawyer in the entire world with experience at having tried to sue Britain on the basis the 1948 Genocide Convention before the International Court of Justice.

In its final Judgment on the merits in the Bosnia case that was issued in 2007, the World Court definitively agreed with me once and for all time that in order to constitute genocide, a state must only intend to destroy a “substantial part” of the group “as such”:

198. In terms of that question of law, the Court refers to three matters relevant to the determination of “part” of the “group” for the purposes of Article II. In the first place, the intent must be to destroy at least a substantial part of the particular group. That is demanded by the very nature of the crime of genocide: since the object and purpose of the Convention as a whole is to prevent the intentional destruction of groups, the part targeted must be significant enough to have an impact on the group as a whole. That requirement of substantiality is supported by consistent rulings of the ICTY and the International Criminal Tribunal for Rwanda (ICTR) and by the Commentary of the ILC to its Articles in the draft Code of Crimes against the Peace and Security of mankind (e.g Krstić, IT-98-33-A, Appeals Chamber Judgment, 19 April 2004, paras. 8-11 and the cases of Kayishema, Byilishema, and Semanza there referred to; and Yearbook of the International Law Commission, 1996, Vol. II, Part Two, p. 45, para. 8 of the Commentary to Article 17).[6]Furthermore, in paragraphs 293 and 294 of its 26 February 2007 Bosnian Judgment, the World Court found that you did not even need a million exterminated people in order to constitute genocide, let alone six million. Rather, even the seven thousand murdered Bosnian Muslim men and boys at Srebrenica were enough to constitute genocide. These victims constituted about one-fifth of the Srebrenica community.

[1] See Francis A. Boyle, Trying to Stop Aggressive War and Genocide Against the People and the Republic of Bosnia and Herzegovina in my The Palestinian Right of Return under International Law 105-33 (2011) and in my The Tamil Genocide by Sri Lanka71-95 (2010). See also Francis A. Boyle, The Bosnian People Charge Genocide! (1996).

[2] See Francis A. Boyle, Is Bosnia the End of the Road for the United Nations?, 6 Periodica Islamica, No. 2 at 45 (1996).

[3] See U.N. Doc. A/48/659-S/26806, 47 U.N.Y.B. 465 (1993).

[4] Steve Doughty, Irish Lawyer Joins Fight As Muslims Cry “Murder,” Daily Mail, November 17, 1993.

[5]> See U.N. Genocide Charge Puts Any Bosnia Role in Doubt, Daily Telegraph, November 17, 1993.

[6] Case Concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), International Court of Justice, Judgment, 26 February 2007 (merits).

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