Olhar direto frente à simulação da HICJ - 15th. AMUN

Num momento de relembrar e analisar dados e textos, deparo-me com o voto que escrevi acerca do caso que analisamos na HICJ, qual seja o da Bosnia e Herzegovina vs. Servia e Montenegro no contexto da Guerra da Bósnia.

Acaba sendo interessante, porque traz uma reflexão sobre o que é, hoje o Direito Internacional, e principalmente como trabalham as instâncias diversas da ONU na questão de emergências humanitárias. Normalmente pensaríamos que uma emergência humanitária seria tratada como urgência absoluta, não? Pois ocorre que, mesmo com dezenas, centenas, milhares ou milhões de vidas em jogo, ainda nossa tradicional burocracia persiste. Mais detalhes... Leiam abaixo.

It was presented to me, during my duty as a Judge of the International Court of Justice, the drama of the Bosnian people at the episodes of war crimes during the Bosnian War. As the facts analyzed by the Court, the crime of genocide was perpetrated against thousands of Bosnian Muslins by the Serbian forces and paramilitary forces allied with the Serbian troops. When discussing and voting the decisions of the Court, I was allowed to add to the draft sentence this Concurring Vote, with my personal thoughts as the grounds to my position concerning what was discussed with the honorable Judges that composed the analyzes of the Bosnia and Herzegovina vs. Serbia and Montenegro case.

My personal point of view is based on the principle that, according to the very own foundations of the International Law, every State is sovereign in its decisions and conducts. From the manifestations about one situation, to the arguments and signature to an international treaty, the State is responsible for its own acts, and respected the principle of the sovereignty, the position and conducts of the States are responsibility of its own. In this point, the International Law has already consolidated the position that any sort of violation of the State’s sovereignty represents the presupposition of punishment to this aggression, and the International Community is very clear about it in many spheres, since the juridical one until the Economics and Political. In this sense, the Court affirmed, in the judgment of the case of Servellón García et al. versus Honduras that

“International responsibility may also be attributed even in the absence of intention, and the acts that violate the Convention are the State’s responsibility regardless of the fact that they are or not a consequence of a deliberate state policy.” (Paragraph 107)

In regard of the opportunity to know that sovereignty is a protected object by the International Law, the merits of the present case were analyzed and the Court made a decision about it. Yet, there are points I think maybe can, in this case and in future (yet not desirable) similar situations, give us all a new perspective of the State’s stance face of instabilities and the international community.

 Srebrenica, 1992. The United Nations proclaim this city in Republika Srpska as a safe zone. Despite this fact, in the same year, Serbian forces destroyed 296 Bosniak villages, murdering almost 3200 Bosniaks around Srebrenica. Not only this episode happened, three years later the Serbian forces moved themselves towards Srebenica, and killed circa 8.000 Bosnian muslins.

In this period of time, seems to me that it is amazing that all legal instances were almost fully exhausted by the Bosnian government about the episode of the first invasion in 1992. This fact leads me to some sort of wonder about two aspects. The first one is the formalities that surround the international entities organizations. Formalities yet needed and desirable to a more suitable treatment between the parts, nevertheless their identities, are some sort of obstacle to more urgent situations that require the international community’s attention.

The second wonder is about the positioning and the measures bounded to the relation between the nations. Certainly allies exist, and some sort of rivalries still undertaking the idea of a truly “United Nations”. For that reason, we find situations in the world that symbolizes the fostering of some and disadvantaging of others. In the case of the Bosnian claims, the treatment of the situation, since its beginning, reveals this duality. In my opinion, the international community itself and its entities behave in a certain elusive way, and despite the will of speed of procedure, it is indubitable that the procedural delay was bounded to the consequences of the war in a humanistic perspective. It is not a point of view linked to direct responsibility, but a matter of idea that some situations could be reconsider in the procedural way of proceeding.

In his vote of the case Servellón García et al. versus Honduras, the Judge Antonio Cançado Trindade brings a quote of the classic “Los Miserables”, by Victor Hugo, and its comments about it deserves to be object of reflection. He quotes and says that

“20. In his classic Los Misérables (1862), Victor Hugo weighs in with a witty spirit:

"L'avenir arrivera-t-il? Il semble qu'on peut presque se faire cette question quand on voit tant d'ombre terrible. Sombre face-à-face des égoïstes et des misérables. Chez les égoïstes, les préjugés, les ténèbres de l'éducation riche, l'appétit croissant par l'enivrement, un étourdissement de prosperité qui assourdit, la crainte de souffrir qui, dans quelques-uns, va jusqu'à l'aversion des souffrants, une satisfaction implacable, le moi si enflé qu'il ferme l'âme; - chez les misérables, la convoitise, l'envie, la haine de voir les autres jouir, les profondes secousses de la bête humaine vers les assouvissements, les coeurs pleins de brume, la tristesse, le besoin, la fatalité, l'ignorance impure et simple. Faut-il continuer de lever les yeux vers le ciel? (...)."

21.           The penetrating words of Victor Hugo acquire great topicality. The disparities that flagellate national societies (and are currently more serious in the erroneously “globalized” world of our days), reveal one of its most marked characteristics: the sad repressive nature of said societies. In the name of public security the most vulnerable, alienated, and excluded, the “undesirable”, Victor Hugo’s misérables, are killed with impunity. Additionally, our repressive societies of today – not only in Latin America but in all continents (I have visited them all, and I know what I am talking about), - do not have a memory, they are condemned to live in a brief and despairing present, without encouraging perspectives, without a future.”

Seems to me that it is not only a matter of perspective of “the X crime was committed, so the punishment X must be applied” in a mere sense of formality and obedience of the Law. Law, as an entity that is created by the society in the process of evolution in its relations, is a product of the society knowledge and interpretation of the context in which it is inserted. Additionally, the seeking of the legal provisions for situations that violates any rights, both civilian population and State itself, not exactly must be equally formal. A manifestation of the facts is at least a signal that the State is not complacent to the suffered aggression.

In this sense, according to the documents, to which the Court had access to study the case, and the claims of the applicant, seems to me that the Bosnian government, despite its efforts, didn’t reach the needed basis to achieve its objectives in order to protect the Bosnian people. In other words, seems to me that our consolidated formality interrupted Bosnian government in its seek for justice to what happened during the invasion and devastation of Bosniak villages in 1992 and the eventual acts of equal destructive effects.

The decision reached by the Court is correct. The sentence was correct in punishing the practice of genocide, and not only its related-crimes, but also the very idea that a State’s right can be violated without the properly reaction. Yet my formal duty as Judge ends in the publishing of the sentence and the immediate beginning of its legal effects, my duty as a citizen of the world and observer of mankind’s history.

Based on this thoughts and reflections, I feel that it is needed not precisely to consider that international community and its entities failed the mutual aid in this context. Yet, we need to consider that excessive formalities may, as already happened, become even more enemies of the speed of procedure. Facing the risk of losing human lives, there is no time to waste. It sounds utopic, but in my vision a true ideal of United Nations shall be greater than mankind’s taste for formalities and procedures. A new year may come. A new century may arrive. A new millennium may appear. But as long as we stick to our failures and our old misconducts face of different people, different belief and any other sort of difference, union shall remain in the dream’s sphere. Not only between people. Between countries also needed it is.

Victor Bastos da Costa

Judge