Bakir Izetbegović’s political stunt quashed by the International Court of Justice

The Court duly examined the various communications described above. The Court considered that their content demonstrates that no decision has been taken by the competent authorities, on behalf of Bosnia and Herzegovina as a State, to request the revision of the Judgment of 26 February 2007 in the case concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia), and that it is therefore not properly seised of the matter. Accordingly, no action can be taken with regard to the document entitled “Application for revision of the Judgment of 26 February 2007 in the case concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia)”1 International Court of Justice, Press Release No. 2017/12, Document entitled “Application for revision of the Judgment of 26 February 2007 in the case concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia)”, Statement by H.E. Judge Ronny Abraham, President of the International Court of Justice, 9 March 2017, p. 2.

As predicted, the International Court of Justice (ICJ) made short work of the so-called Bosnian application to have the 2007 decision in the Serbia Genocide case revised (reconsidered).  Swiftly and unceremoniously, Bakir Izetbegović’s request was dismissed for what it was: a divisive political ploy to garner publicity, devoid of any legal grounding and – surprise, surprise –  ultra vires to boot.

A few interesting things emerge from the Statement by President of the ICJ H.E. Judge Ronny Abraham.  Izetbegović’s envoy to the ICJ, law professor Sakib Softić, who signed the application as Agent for Bosnia and Herzegovina (BiH), had no authority to act on behalf of BiH. He knew that he was not in fact or in law an Agent for BiH, having been told by the ICJ as early as 26 May 2016 that he would require a new appointment. This, of course, would have required Softić to get the blessing of the Presidency. So, rather than do as instructed by the ICJ (most likely an exercise in futility), he did what many of his ilk do when conflating political desires with legal obligations: he misrepresented the truth (to attach an overly generous discription) to the ICJ about being an Agent of the BiH, thus giving the erroneous (and in some jurisdictions felonious) impression of being legitimate.

Perhaps this may seem a bit harsh on poor Softić, who, after all, was merely acting as an instrument for and following instructions from Bakir Izetbegović, Bosniak member of the BiH Presidency and President of his papa’s (Alija Izetbegović) Party of Democratic Action (SDA).  It does, however, highlight the political gamesmanship being played in BiH and how destabilizing Izetbegović’s antics can be for BiH and its neighbors.

David Scheffer

What is even more astonishing is that David Scheffer, the former United States Ambassador at Large for War Crimes Issues and current United Nations (UN) Secretary-General’s Special Expert on UN Assistance to the Khmer Rouge Trials, also signed Izetbegović’s request as a “Deputy-Agent of Bosnia and Herzegovina.” Another ethically dubious misrepresentation in this sordid soap opera.

Scheffer knows better.  Yet, he lent his name and, given his pedigree, his supposed heft, to this absurdity of a request, which even a first-year law student could see does not meet the barest of criteria under Article 61 of the ICJ Statute.

Query, how a former ambassador, someone who helped in establishing the International Criminal Tribunal for the former Yugoslavia, a UN Secretary-General’s Special Expert, a Professor of Law teaching International Law, etc. (his CV goes on), could not know that under the Dayton Accords and the BiH Constitution (negotiated and drafted when Scheffer was working at the US State Department on matters related to BiH) decisions at the Presidency level need to be collective?  How could he not know that Softić had no remit to represent BiH as its Agent before the ICJ?  And who on earth bequeathed him with the title and authority of “Deputy-Agent of Bosnia and Herzegovina”? Astonishing.

Softić and Scheffer should not have aided and abetted Izetbegović. They are required by their professional codes of ethics (yes, even law professors when acting as legal representatives must abide by the code of professional responsibility and ethics of the legal profession) not to misrepresent the truth in a legal document being submitted to the ICJ, a court of law where candor, accuracy and integrity are expected.

If I am getting all worked up and troubled by Izetbegović’s (and no doubt SDA’s) political shenanigans, just imagine how citizens of BiH, especially the Serbs and Croats, must feel.

Though it is bewildering that Izetbegović, by unilaterally going to the ICJ, was effectively attempting to disenfranchise his co-Presidency members and, by extension, the two constituent nations (peoples) they represent, it is scandalous that Scheffer, for all his touting of human rights and the Rule of Law, would, whether intentionally or from a lack of due diligence, misrepresent himself before the ICJ.  He owes the ICJ and the BiH Presidency and people an unqualified apology.

Footnotes   [ + ]

Author: Michael G. Karnavas

Michael G. Karnavas is an American trained lawyer. He is licensed in Alaska and Massachusetts and is qualified to appear before the various International tribunals, including the International Criminal Court (ICC). Residing and practicing primarily in The Hague, he is recognized as an expert in international criminal defence, including, pre-trial, trial, and appellate advocacy.