By Assoc. Prof. Harun Halilovic
-The author is a lecturer at the Faculty of Law, International University of Sarajevo.
ISTANBUL (AA)- The tragic news from Gaza shocked the world and had a special impact on people in Bosnia and Herzegovina, bringing back harrowing memories of war, and especially of the Srebrenica genocide.
- Both genocides demonstrate hypocrisy of international community
There are many parallels to be identified between Srebrenica and Gaza. In 1993, the UN Security Council adopted Resolution No. 819, which declared Srebrenica a "safe area.” Shortly after the Security Council resolution declaring Srebrenica a “safe area” was adopted, the defending forces of the Bosnian Army had to surrender their weapons in exchange for the promised protection by the UN protection forces. After the arrival of the UN forces, the Army of the Republic of Srpska continued with the attacks on the enclave, intending to probe and provoke the response from the supposed aviation support and reinforcements for the weak UN troops on the ground. There was no response. The ineffective enforcement mechanism within the UN system only encouraged the armed forces of the Republic of Srpska and many other paramilitary units, some of them originating from Serbia [1] to continue with their attacks on the undefended town, culminating in the takeover of Srebrenica and the genocide that followed.
In Gaza too, there are UN resolutions [2] and orders of provisional measures issued by the International Court of Justice (ICJ) that order Israel to prevent the commission of all acts that fall under Article 2 of the Genocide Convention [3] and to enable the provision of urgently needed basic services and humanitarian assistance. [4] Who is going to enforce them? The so-called designated “safe areas” in Gaza are repeatedly attacked.
The hypocrisy of the “international community,” and the selective outrage over destruction and killing, depending on somebody's religion and the color of their skin, is tragically paralyzing. In Gaza too, the inaction only encourages Israel to do whatever it wants, including genocide, with zero accountability.
- Serbs, Israelis utilized rape as a weapon of war
There is yet another tragic parallel between the war in Bosnia and Gaza, namely the use of rape as a weapon of war. The International Criminal Tribunal for the former Yugoslavia (ICTY) found in several cases [5] that rape was used by the members of the Army of the Republic of Srpska as an integral part of the crimes against the civilian population. Women were systematically raped in special detention centers designed for sexual violence against women and girls. [6] Also, as ICTY cases show, the rape and sexual abuse of men was used as a specific form of torture in detention camps. [7] As recent shocking reports of rape of women and sexual abuse of male detainees in Israeli custody show, even that threshold was crossed. More disheartening is the response of the institutions and the public in Israel, protecting the rapists.
- How are the Gaza and Srebrenica cases at the ICJ similar?
Another thing Srebrenica and Gaza have in common are the cases before the ICJ. The genocide case related to Bosnia concluded in 2007, while the case against Israel, initiated by South Africa and joined by several other countries, including, most recently, Türkiye, is in its initial stages.
Legally proving genocide, as Bosnians have experienced, is extremely difficult. The existence of genocidal acts (actus reus) and the intent (mens rea), defined by the 1949 Genocide Convention as “intent to destroy in whole or in part” (the so-called genocidal dolus specialis), must be proven simultaneously beyond reasonable doubt.
In Gaza, indiscriminate targeting and mass killing of civilians, collective punishment, as well as large-scale destruction and acts designed to make the lives of the Palestinians in Gaza unsustainable, clearly indicate the existence of the “actus reus” of genocide.
In the practice of international courts, genocidal intent, the always elusive “dolus specialis” requirement, besides orders and plans (which are rarely found [8]), can also be proven with the existence of a specific pattern of behavior of the perpetrators. [9] When it comes to genocidal intent, statements invoking the eradication of “amalek,” calling Palestinians “human animals,” and orders of a complete halt of necessary provisions to the Gaza population (that were insufficient, to begin with) are very indicative. Those statements are made by officials in decision-making positions within the state of Israel. Therefore, they cannot be dismissed as mere extremist rhetoric or the opinions of fringe groups. The situation becomes clearer if we look at the wider pattern of behavior, including ongoing attacks against the Palestinians in the West Bank. Therefore, the case before ICJ cannot be dismissed as “meritless,” and there is a strong case for the existence of genocidal intent.
In Bosnia, the courts found that “actus reus” of genocide was present in other places, besides Srebrenica, like in the northern town of Prijedor. However, there was no sufficient evidence to prove the “dolus specialis,” as in Srebrenica. As the experience of Bosnia shows, even when genocide is not established, the crimes committed can be defined as crimes against humanity or war crimes, which are not “lesser” crimes but are legally different from genocide. One must not hold that psychological misconception that, unless the court calls genocide, nothing happened.
The failure of the UN system is leaving tragic results. Ultimately, the reform of the UN system is of utmost importance. The composition of the Security Council, the veto powers of permanent members, and the implementation mechanisms of the resolutions need to change. Yes, it is a difficult task. But the reform of the UN system is necessary if humanity wants to deliver on its promise of stopping crimes like genocide, war crimes, and rape as weapons of war. Until then, Gaza and Srebrenica show us what will happen if it is not reformed.
[1] As the infamous “Scorpions”, see further: ICJ, Case Concerning Application Of the Convention On The Prevention and Punishment of the Crime of Genocide (Bosnia And Herzegovina V. Serbia And Montenegro) Judgment of 26 February 2007
[2] See further: UN GA Resolution A/ES-10/L.27; UN SC Resolution 2728
[3] Such as „(a) killing members of the group; (b) causing serious bodily or mental harm to members of the group; (c) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; and (d) imposing measures intended to prevent births within the group“
[4] ICJ, Order of 26 January 2024 Provisional Measures, Case Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v. Israel)
[5] See further: https://www.icty.org/en/features/crimes-sexual-violence/landmark-cases
[6] As in the ICTY case of Kunarac et al
[7] As in the ICTY case against Duško Tadić
[8] As in Srebrenica, the infamous Directive 7 issued by Radovan Karadzic
[9] As in the ICTR cases of Seromba and Akayesu
*Opinions expressed in this article are the author’s own and do not necessarily reflect the editorial policy of Anadolu