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Genocide in Bosnia:
Lawyers' justice versus justice



Richard Falk

April 6, 2007 - 15 years after the EU and others recognized Bosnia-Hercegovina as an independent state.

Widespread disappointment has greeted the near unanimous decision of the World Court in The Hague, formally known as the International Court of Justice, to the effect that Serbia was not guilty of genocide in Bosnia during the 1990s. The outcome although troubling in some aspects should not be viewed as a
defeat for the Bosnian side.

The World Court did conclude that the 1995 massacres at Srebrenica that resulted in the deliberate killing of 7,000 or more Bosnian Muslim boys and men was ‘genocide.’ It also decided that the Serbian government in Belgrade failed to fulfill its legal duties under the Genocide Convention by not doing what it could to prevent these events. And further that the Serbian unwillingness to arrest General Ratko Mladic, the commander of the Srebrenica operations, and turn him over to the criminal tribunal in The Netherlands for prosecution, violated its legal duties.

Yet the major headline produced by the World Court case was that Serbia was, despite all appearances, not guilty of or responsible for genocide despite its seeming close connections with the overall pattern of mass killing and systematic abuse of the Bosnian Muslim population throughout Bosnia. It seems to defy common sense that this barbarous Serb behavior that included widespread rape and sexual violence against Muslim women in Bosnia did not add up to a finding of genocide aside from the isolated incident at Srebrenica.

And as strangely, that the relationship between the Belgrade government headed by the arch Serbian nationalist, Slobodan Milosevic, and the events in Bosnia did not produce a tribunal finding that the Federal Republic of Yugoslavia (FRY) was legally responsible for what its subordinate Serbian allies in Bosnia were doing. The World Court did decide that Belgrade substantially financed, supplied, and administered Serb activities in Bosnia, but remained unconvinced that that sufficient proof existed to hold FRY legally responsible.

One unfortunate result of such a conclusion is to suggest that the dead Milosevic should not have been held criminally accountable for what was done in Bosnia despite his blatantly obvious role as mastermind.

However disappointing these results, we must not be too quick to condemn the World Court. After all, this judicial arm of the United Nations is composed of highly qualified and distinguished jurists from all parts of the world. It has made courageous and unpopular decisions in recent years. In the 1980s it ruled against the United States in a case involving American military support for the contras, an insurgency trying to overthrow a left government in Nicaragua. It also issued an Advisory Opinion in the 1990s on the legality of nuclear weapons that came close to declaring that these weapons were unlawful and that the nuclear weapons states were failing in their obligations to pursue nuclear disarmament in good faith.

And most impressively of all, back in 2004 the World Court issued an Advisory Opinion that held by a 14-1 vote that Israel’s controversial security wall built on occupied Palestine was not only unlawful, but that it should be dismantled and reparations paid to the Palestinians for the damage done.

In other words, this is a judicial body that has demonstrated convincingly its political independence and its various decisions exhibit a consistently high quality of legal reasoning. Its willingness to render unpopular decisions because of its adherence to a professional ethos based on the discipline of law should increase our confidence that this institution can over time contribute to world order and global justice.

For these reasons, critics of the World Court in the Bosnia case should avoid the temptation to explain the outcome as one more example of Islamophobia. Or similarly, to contend that the failure to hold Serbia responsible for genocide in Bosnia was a reflection of unacknowledged political pressures that somehow swayed the judges to refuse to decide the case in accordance with common sense.

Despite wishing that the case had been decided more in accord with public perceptions of the underlying realities, I maintain that the World Court was acting in accord with its understanding of the requirements of legality for a case of this kind. Such an assessment is strengthened by the one-sidedness of the outcome, including the supportive votes of judges from Morocco, Mexico, Venezuela, Sierra Leone, Madagascar, and China. True, the only dissenting judge, other than the Bosnian judge expected to represent Bosnia’s views, was Awn Shawkat Al-Khasawneh, a jurist from Jordan who was the Vice President of the World Court. But overall, such a high level of consensus could not be achieved without a strong jurisprudential belief among the judges as to the correctness of their approach and decision.

It is helpful to understand the legal reasoning of the World Court before offering some critical commentary. The Bosnia decision makes very clear that when evaluating a complaint about the behavior of a sovereign state, it should demand a very high level of proof. It also explicitly declares that this demand is even greater when the case involves charges of wrongdoing as serious as ‘genocide.’ In these respects the decision is acknowledging that the authority of the World Court ultimately depends on the confidence of the states that make up international society. In this sense, it is unlike courts in national legal systems whose authority derives from a governmental system with effective an enforcement capacity.

The World Court, in contrast, is a voluntary institution available to states as a way of solving disputes with other states. Its judicial authority depends on some indication of consent by the parties. Here, for instance, by ratifying the Genocide Convention participating states agreed in Article IX to resolve any dispute among the parties by having recourse to the World Court. If states doubted the legitimacy of the World Court or suspected it of bias, such a provision would have made the Genocide Convention unnegotiable.

In addition to this concern about the identity of the World Court as a judicial institution there were reinforcing issues associated with the crime of genocide. Among international lawyers generally there is resistance to the tendency of the media and public opinion to label any pattern of widespread killing of civilians as ‘genocidal’ or ‘genocide’ without regard to the characteristics of the crime as it is defined in the Genocide Convention. The legal conception requires a convincing demonstration of a specific intention “to destroy, in whole or in part, a national, ethnical, racial or religious group” by a series of acts specified in Article II.

In this regard, the decision distinguishes ‘ethnic cleansing’ from ‘genocide,’ deciding that using horrible means to induce the Bosnian Muslims to leave the territory of Bosnia claimed to belong to the Republic of Srpska, and elsewhere, is not genocide, although it was observed as likely to involve the commission of crimes against humanity and war crimes. A severely abusive set of practiced designed to coerce dispossession is thus treated as having an intention that does not qualify the behavior as genocide within the meaning of the treaty.

The World Court majority describes the evidence of Serb wrongdoing in the greatest detail, largely explaining a decision that runs to 171 single spaced pages, to show that apart from Srebrenica the evidence available does not support a legal conclusion of genocide. The decision also notes that it has only been asked to determine the existence of genocide, and as a civil tribunal lacks the authority in any event to identify individual perpetrators of international crimes, which is the role assigned to criminal tribunals.

In this case, the International Criminal Tribunal for former Yugoslavia (ICTY), established by the UNSC in 1992, and more generally, the International Criminal Court (ICC), both of which are also located in The Hague, are the relevant tribunals capable of identifying such crimes as are alleged to have been committed by Serbia. The ICC is probably unavailable as its authority does not extend to crimes committed before its establishment in 2002.

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Yet, then why cannot Serbia be held at least responsible for Srebrenica where genocide did occur even by the strict legal test applied by the World Court? Here too the tribunal leans over backwards to withhold adverse judgment against a sovereign state.

In the majority decision insists that since Serb control over the military and paramilitary forces is “not conclusively shown” legal responsibility can not be attributed to Belgrade. This is so even though the decision acknowledges that some potentially incriminating documents and highly relevant evidence of Serb complicity in the Srebrenica genocide were withheld from the complaining Bosnian side should not alter this assessment of the evidence.

But true to its juridical identity, the World Court does not let Serbia off the hook altogether. The decision takes seriously the Article I obligation of “Contracting Parties” to “undertake to prevent and punish” the crime of genocide. Here, there are two applications of this obligation that are substantively important in relation to Bosnia and significant for our wider understanding of the legal duties of states in relation to other instances of alleged genocide, e.g. Darfur.

Serbia was held by the World Court to have sufficient knowledge and influence in relation to the Bosnian Serb political leadership and military forces as to have a duty to do what it could to prevent the genocide from happening at Srebrenica, and this it failed to do, thereby violating the Genocide Convention. Similarly, its refusal to arrest General Mladic, despite his known presence in Serbia, and then transfer him to the ICTY for prosecution, represented a failure by the FRY to uphold its legal duty to take steps to facilitate the punishment of those properly accused of genocide.

The dissenting judge, Al-Khasawneh, does not disagree very sharply in method and assessment. He is somewhat more willing to draw inferences of legal responsibility from patterns of Serb behavior, and more significantly, believed that the Serb failure to make known documentary evidence available to the tribunal should have eased the burden of proof imposed on Bosnia in relation to genocidal intent. In this respect, Judge Al-Khasawneh’s view would have corresponded more closely with world public opinion than did the decision reached by the great majority of the judges, but the margin of support among the judges for the narrower findings should at least be understood before it is repudiated.

Beyond this need to take account of what kind of court the World Court is, there is presented by this decision relating to the charges against Serbia an occasion to ponder what all states should be doing as a matter of law to prevent and punish clear ongoing and historical instances of genocide.


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