Lawyers' justice versus justice
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
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.
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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