July 12, 2006

Skepticism in Serbia about the International Criminal Tribunal for the former Yugoslavia (ICTY) is nothing new, but the recent judgment against Naser Oric has provoked a storm of criticism. The court sentenced Oric, the wartime commander of the Bosnian Muslim forces in Srebrenica, to two years’ imprisonment for command responsibility in the murder of five Serb prisoners and cruel treatment of ten others, committed by individuals under his control in 1992 and 1993.

It is possible, of course, that the ICTY judges wrongly interpreted some evidence and let Oric off too lightly. The Appeals Chamber will probably address that issue, in addition to examining the trial chamber’s implicit position that the superior who does not prevent crimes should be punished less severely than the direct perpetrators over which he had effective control.

But the critiques by the local press and politicians in Serbia don’t focus on arguments about the legal approach of the ICTY judges. Instead, they argue that Oric’s sentence confirms the court’s bias against Serbs. This criticism is based on an inaccurate history of the Bosnian war and distortions of the court’s record.

Many in Serbia continue to believe that Muslim crimes in the villages around Srebrenica in 1992 and 1993 are equivalent to the mass killings of the Muslims in Srebrenica in July 1995, and that Oric was the mastermind of all these crimes. These beliefs became entrenched last year, around the time of the tenth anniversary of the genocide in July 1995. The ultra-nationalist Serbian Radical Party launched an aggressive campaign to prove that Muslims had committed crimes against thousands of Serbs in the area. The campaign was intended to diminish the significance of the July 1995 crime, and many in Serbia were willing to accept that version of history.

But as the Oric judgment makes clear, the facts do not support the equivalence thesis. Take the events in the village of Kravica, on the Serb Orthodox Christmas on January 7, 1993, for example. The alleged killing of scores of Serbs and destruction of their houses in the village is frequently cited in Serbia as the key example of the heinous crimes committed by the Muslim forces around Srebrenica.

In fact, the Oric judgment confirms that there were Bosnian Serb military forces present in the village at the time of attack. In 1998, the wartime New York Times correspondent Chuck Sudetic wrote in his book on Srebrenica that, of forty-five Serbs who died in the Kravica attack, thirty-five were soldiers. Original Bosnian Serb army documents, according to the ICTY prosecutor and the Sarajevo-based Center for Research and Documentation of War Crimes, also indicate that thirty-five soldiers died.

The critics also invoke unreliable statistics. A spokesman for the ruling Democratic Party of Serbia in the wake of the Oric judgment, for example, claimed that “we have documents showing that 3,260 people were found dead around Srebrenica from 1992-1995.” However, the book Hronike nasih grobalja (Chronicles of Our Graveyards) by the Serb historian Milivoje Ivanisevic (the president of the Belgrade Centre for Investigating Crimes Committed against the Serbian People), uses the significantly lower figure, of “more than 1,000 persons [who] died,” and contains the list, mostly made of men of military age. Among those killed, there were evidently a significant number of Bosnian Serb soldiers who died in the fighting, like in Kravica.

To be sure, the Oric judgment establishes a number of instances in which killings of civilians and prisoners, cruel treatment, and destruction of property did take place. But the major points of the judgment are much more complex than the prevailing Serb narrative on Srebrenica. Like the report by the Dutch Institute for War Documentation on Srebrenica (2002) and Sudetic’s book, the judgment finds that the regular Bosnian troops in Srebrenica were often unable to restrain the large groups of starving civilians who took part in the attacks on the Serb villages. The absence of Oric’s effective control over the civilians was the basis for his acquittal on the charges of destruction of property.

Presumptions of bias appear to stand in the way of a balanced assessment of the Oric judgment. According to the editor-in-chief of Politika, the ICTY’s acceptance of food shortages and general chaos in Srebrenica as a mitigating circumstance for Naser Oric, implicitly cast the Bosnian Serbs as the aggressors. In reality, the chamber’s reasoning that that hunger and overcrowding had crippled Oric’s ability to assert his command was unrelated to the ethnicity of the besieged and the forces surrounding them.

Politika’s editor also claimed that the Oric judgment marks the first time that the ICTY has considered the “youth, inexperience, and bloodthirsty mood” of the accused as mitigating circumstances. In reality, the young age of the accused was a mitigating circumstance in the cases against Drazen Erdemovic, Anto Furundzija, Goran Jelisic, and Tihomir Blaskic. The chamber makes no mention of Oric’s “bloodthirstiness”, or anything similar, and clearly does not consider it a mitigating circumstance.

There is nothing wrong with debating the work of the ICTY. But rather than asking reasonable questions about the judges’ approach to the law, the critics prefer the comforting myth that the ICTY is biased against Serbs.