SILAJDZIC AND THE "LEGAL OPTION"

C O N F I D E N T I A L SECTION 01 OF 03 SARAJEVO 001375

SIPDIS

SIPDIS

EUR FOR DICARLO/HOH/STINCHCOMB, L FOR MANSFIELD, THE HAGUE
FOR SCHILDGE/MANNING

E.O. 12958: DECL: 06/20/2017
TAGS: BK PGOV PHUM PREL
SUBJECT: SILAJDZIC AND THE "LEGAL OPTION"

REF: A. SARAJEVO 456


B. SARAJEVO 1211

Classified By: Ambassador Douglas L. McElhaney. Reasons 1.4 (b),(d).

Summary
--------------


1. (C) For several months, Bosniak Presidency member Haris
Silajdzic has alluded to legal avenues by which to "annul the
legacy of genocide in Bosnia" and compel the international
community to "implement" the February 26 verdict of the
International Court of Justice (ICJ). Silajdzic's legal
vision also informs his current stance on constitutional and
police reforms. At a June 11 meeting with the Ambassador,
Silajdzic spelled out a strategy involving a convoluted
interpretation of both the ICJ verdict and the Draft Articles
on the Responsibility of States for International Wrongful
Acts. According to Silajdzic, the ICJ verdict, by
acknowledging that genocide took place in Srebrenica, also
recognized the Republika Srpska as a de facto state and the
perpetrator of war crimes. Silajdzic cited the Draft
Articles as a basis for penalties against the RS as a state
actor and legally compelling the international community to
enforce these penalties. Silajdzic also interprets past UN
acknowledgments of its failure to prevent the Srebrenica
massacre as an admission of responsibility and therefore an
obligation to take corrective action. He asserts that the UN
is charged with implementing the judgments of its organ, the
ICJ, and has frequently stated his intention to submit a
formal written request to the UN Secretary General demanding
UN implementation of the ICJ ruling. Silajdzic cited the May
OIC resolution urging implementation of the verdict as
evidence of international community support for his position
and stated his intention to continue to work with OIC member
states to advance his agenda in the UN. Silajdzic's goal is
clear. He seeks to use the ICJ verdict as a legal basis for
the elimination of the Republika Srpska and to engineer a
confrontation over Srebrenica with the international
community in the process. End Summary.

Silajdzic's Legal Strategy
--------------


2. (C) In the course of recent months, Bosniak Presidency
member, and Party for Bosnia and Herzegovina (SBiH)
President, Haris Silajdzic has become increasingly explicit
in linking his stance on constitutional and police reforms to
the February ICJ verdict. Silajdzic has cited the verdict as
the legal basis for his stated goal of changing the name of
the Republika Srpska (RS),and subsequent calls for the
elimination of the entity altogether. He has often made
non-specific claims that the verdict obliges the
international community and the UN to take punitive action
against the RS and announced his intention to take up the
issue with the UN Secretary General in the runup to the UNGA
(Ref B). Until recently however, Silajdzic had provided few
details of his legal strategy.


3. (C) On June 11, the Ambassador met with Silajdzic to
discuss constitutional reform. This led to an in-depth
discussion of Silajdzic's legal interpretation of the ICJ
verdict. Silajdzic repeated his familiar position that his
opposition to the April constitutional reform package was the
result of his determination that a new constitutional
arrangement that acknowledges the "genocidal" Republika
Srpska would be illegal under international law. He asserted
this position has now been given legal force by the ICJ
ruling. Silajdzic stated that Bosniaks cannot accept the
continued existence of an entity characterized by the ICJ
verdict as a "genocidal institution." The name of the
Republika Srpska itself, which acknowledges only one group of
residents, legitimizes genocide and ethnic cleansing.
Similarly, victims of the Srebrenica massacre cannot be
expected to be protected by the RS police, "the same
institution that killed them," Silajdzic added. In this
context, Silajdzic said, his insistence to date on the
elimination of entity voting, by which the RS can dissolve
the state government and paralyze the country, is not an
extreme position but rather the "minimum of minimums."

RS as De Facto State
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4. (C) The Ambassador pointed out that the ICJ was not asked,
and its verdict did not answer, the question of whether the

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RS was a party to genocide. Silajdzic disputed this,
claiming that ICJ references to RS police units constitute
acknowledgment of the RS as a de facto state during the war.
The Ambassador noted that the Bosniak signatories to the
Dayton Accords had accepted the continued existence of the
RS. Silajdzic replied that Dayton was signed "under duress"
and in the course of an armed conflict. He added that the
subsequent issuance of the ICJ verdict had provided a new
legal basis from which to retroactively question the terms of
Dayton. The Ambassador replied that the only way to revisit
the issue would be a unilateral abrogation of the terms of
the Accords by Bosniak signatories, and that such step would
be unacceptable.

UN Responsibilities
--------------


5. (C) Silajdzic stated that the UN is legally obliged to
enforce his interpretation of the verdict and he planned to
make a formal, written request to the Secretary General to
"answer certain questions and take certain steps." He noted
that Bosniaks have already begun to explore similar recourse,
citing the June 4 filing of a class-action lawsuit by
representatives of the "Mothers of Srebrenica and Zepa
Enclaves" association at the Dutch Supreme Court. The
lawsuit was filed against the Dutch Government and the UN for
failure to prevent the Srebrenica massacre. Silajdzic,
however, acknowledged the June 8 statement by the UN
asserting immunity from the suit under the 1946 Convention on
the Privileges and Immunities of the United Nations.


6. (C) Silajdzic stated that "hiding behind immunity is
grotesque" and reiterated his conviction that the UN would
ultimately endorse his approach. The ICJ was, after all, the
Secretary General's court and its verdict was "his

SIPDIS
statement." Silajdzic pointed out that the UN has
acknowledged its "responsibility" in contributing to the
genocide in Srebrenica as a demilitarized zone under UN
protection. He added that he was aware such a legal
challenge would take a long time but added that Bosniaks are
willing to wait years for justice under international law.

OIC Support
--------------


7. (C) Silajdzic also raised the statement on Bosnia included
in the May 17 communique of the Organization of Islamic
Conference (OIC) plenary in Islamabad. He asserted that the
statement, which took note of the ICJ verdict and "called
upon the international community to ensure that the decisions
of the Court are implemented," endorses his view that UN
member states must acknowledge that the RS is an illegal
entity. Asked by the Ambassador whether he intended to turn
away from the U.S. and EU, to seek OIC member states support,
Silajdzic asserted that he would only seek assistance from
OIC member states sitting on relevant UN committees or
councils.

Articles on the Responsibility of States
--------------


8. (C) Silajdzic claimed that the 2001 Draft Articles on the
Responsibility of States for International Wrongful Acts
oblige the international community to address the genocide in
Bosnia and to sanction the perpetrators of war crimes, namely
the RS. Silajdzic claimed that since the ICJ verdict has
acknowledged the RS as a de facto state, the terms of the
Articles subject it to penalties. According to Silajdzic,
the international community is also obliged by the Articles
to deny recognition to the products of genocide, namely the
RS. Silajdzic stated Bosniaks expect the United States and
the EU to abide by the responsibilities pursuant to these
legal obligations.

Bosniaks Risking Conflict with the U.S.
--------------


9. (C) The Ambassador warned Silajdzic that his approach
would inevitably bring him into conflict with the United
States and other countries, including the signatories of the
Dayton Peace Accords, and Bosnia's future NATO and EU
partners. He stressed that Silajdzic's assertions regarding
wartime history misrepresented prior U.S. actions and were
becoming increasingly offensive. Silajdzic was rapidly
creating the impression that it is the Bosniaks who are
raising tensions in the country. The Ambassador warned that

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the long-standing close relations between the Bosniaks and
the United States could worsen as a result.


10. (C) Silajdzic said that he, and Bosniaks, want stability
in Bosnia, but that it is unattainable without a "minimum of
justice." Bosniaks had resorted to this approach because the
international community had been silent in the wake of the
ICJ verdict and this failure to respond encouraged the RS to
further acts of defiance. He stated that he was disappointed
in the ICJ verdict and believed it should have implicated
Serbia in the genocide. However, he had accepted the ruling
as it was delivered but insisted on its full implementation.
Silajdzic asked rhetorically what purpose the Court serves if
its verdicts are not implemented.

Kosovo
--------------


11. (C) Silajdzic stated that when he appeals to the United
Nations, he intends to draw parallels between Kosovo and
Bosnia. The international community was supporting the
application of international law to address long-term human
rights violations in Kosovo. Bosniaks would ask for nothing
more than the application of the same terms here, he said.
It seems, Silajdzic said, that international law is
applicable to Kosovo, but not to Bosnia.

Comment
--------------


12. (C) Silajdzic is adopting an increasingly confrontational
posture vis-a-vis his Serb political rivals, the
international community, OHR and the USG. His increasing
willingness to pursue to legal actions against the UN and
other parties is illustrative of this strategy. It is
unclear whether Silajdzic believes his legal arguments have
merit or he is simply seeking to force the international
community to revisit Dayton. When recently asked by
journalists whether his legal approach is realistic,
Silajdzic replied angrily that he was "tired of dealing with
reality." We can only conclude that Silajdzic's "legal"
strategy is aimed at further inflaming Bosniak Muslim opinion
here, thereby focusing U.S. and international attention on
their grievances. It is unfortunate that few observers in
Bosnia itself are able to see through the sophistry of his
arguments. End Comment.
MCELHANEY