To sue, or not to sue. That was the question facing Bakir Izetbegovic, the Bosniak member of the Bosnian Presidency, in connection with a 2007 decision by a UN court acquitting Serbia of genocide in the 1990s.
To begin with, he has no support for a lawsuit from the rest of the tripartite body that governs Bosnia-Herzegovina. Moreover, Serb representatives in Bosnian state institutions have threatened a boycott that could paralyze the nation's political life if Izetbegovic decides to reopen old wounds.
Why has a decade-old court verdict suddenly become so explosive?
In 2007, the International Court of Justice (ICJ) ruled that the Serbian state could not be held responsible for genocide committed in Bosnia during the war (1992-95).
The court found only that Serbia had been guilty of failing to prevent the genocide at Srebrenica, postwar Europe's deadliest atrocity.
At the time, the verdict was a great disappointment for Bosnian officials, for Bosnian Muslims as the principal victims of the war in Bosnia, and for many international observers.
Dominant Nationalist Narrative
It was celebrated in Serbia, where the court decision was seen as a vindication of a dominant nationalist narrative that seeks to paint Serbs in Yugoslavia as victims of other ethnic groups. In some international circles, the ICJ's decision was seen as a miscarriage of justice.
"From the professional perspective, the 2007 ICJ judgement looked as though it could be wrong as it was not based on the evidence that existed and still exists at the ICTY, and therefore should be reconsidered," Sir Geoffrey Nice, the lead prosecutor in the case against Serbian dictator Slobodan Milosevic, and Nevenka Tromp, a member of the prosecution's research team, wrote in a paper sent to Bakir Izetbegovic and to the Bosnian media.
Challenging the ICJ verdict was never going to be easy. But, according to Tromp, any legal avenue -- whether an appeal or a request for a revision -- should be taken if there is any doubt about the original decision.
The ICJ allows for appeals or requests for revision within 10 years of the original judgments. The main condition for such requests are the emergence of new, "decisive" facts or evidence unavailable to the court at the time of the verdict. Such new information or evidence must be provided within six months of its discovery. The deadline for Bosnia to send a formal request for revision is February 26, 2017.
Trove Of Documents
There is reportedly a trove of documents at the International Criminal Tribunal for the Former Yugoslavia (ICTY) archives that remain sealed as a consequence of political deals between Carla del Ponte, the former ICTY prosecutor, and Belgrade.
These agreements, dating from 2005 and 2013, allowed Serbia to protect documents at ICTY trials that might have been prejudicial to its interests in the genocide lawsuit bought by Bosnia at the ICJ.
Bakir's father, Alija Izetbegovic, was Bosnia's president when the ICJ genocide suit was launched in 1993. Some advised the younger Izetbegovic to begin the process of making those protected documents available in order to support the request for a revision of the ICJ verdict.
By Izetbegovic's own admission, taking Serbia to court once again on charges of genocide could create the biggest crisis in the region since the Dayton Accords brought peace in 1995. Yet he proceeded anyway.
The problem, however, is that he appears to have failed to do his homework, and did not leave enough time to meet all the requirements of The Hague tribunal.
Deeply Entrenched Feeling
When the war ended in 1995, there was a deeply entrenched feeling among Bosnians that nothing could prevent justice from taking its course. Many of those victimized by the war believed that the mass graves, the destroyed villages, the accumulated evidence of crimes against civilians in besieged cities amounted to self-explanatory evidence of the intention to commit genocide and of Serbia's complicity. But justice is not based on sentiment, and Bosnian officials failed to provide sufficient evidence in the case.
But the possibility of appeal is bringing emotions to boiling point once again, because Serbia never formally acknowledged responsibility for the genocide in Srebrenica; there has never been a frank and unqualified admission that the massacre of more than 8,000 men and boys in Srebrenica, in July 1995 -- the biggest mass killing on European soil since World War II -- was genocide.
In 2010, after heated debate, the Serbian parliament adopted a declaration on Srebrenica, but it fell just short of what many Bosnians had hoped for. The "G" word was dropped in the final document, although it included a link to a European declaration describing the events in Srebrenica as genocide.
'Last Chance'
A witness to genocide and a campaigner for victims, Hasan Nuhanovic, told RFE/RL in Sarajevo: "As someone who lived through those events, I have no doubt that Serbia was directly involved. Is this the right moment [to reopen the case]? It may or may not be the ideal moment; but it is definitely the last chance, because the deadline expires on February 26, and the day after will be too late for the Bosnian appeal. We simply don't have the luxury of agonizing over whether it's the right time [for this] or not."
A Belgrade historian, Branka Prpa, has suggested that the key to justice lies not in The Hague but in Serbia itself: "In order to emerge from the cycle of conflict, it is necessary for those who were in fact the instigators of that conflict to stand up and admit: I am guilty, and I apologize. Serbia is the key in that sense."
Janja Bec, a Serbian sociologist and scholar of genocide, has described the final stage of genocide as denial of the crime. It might be argued that Bosnia now finds itself in that final stage, even as a (majority-Serb) portion of the country continues to deny that it ever happened.
Nuhanovic, in response to concerns that the reopening of the ICJ case risked destabilizing the region, said that what is at stake is the most serious of all crimes -- genocide -- and that in any case Bosnia has lived in a state of constant tension since the end of the war more than two decades ago. He said that, anyway, "there is no harmony to speak of" which might be disrupted by a reopening of the case.
