ICJ Judgment Significant Despite Flaws

This week, Rosalyn Higgins, the president of the International Court of Justice, ICJ, read a judgment based on a political compromise, and far removed from a sense of justice.



The judgment found that genocide occurred during the Bosnian conflict of 1992 to 1995 only in relation to the Srebrenica massacre of 1995, during which 8,000 Muslim men and boys were killed.



It did not find Serbia responsible for the actions of the Bosnian Serb army, VRS, and paramilitaries who carried out the massacre.



Nor did it find genocide to have taken place during the rest of conflict, in which around 150,000 civilians - most of them Bosniaks - perished.



In the Bosnian war, the international community stood by and watched as Serbia unleashed aggression against the country’s non-Serb population.



Governments worldwide ignored the concentration camps, genocidal rape, mass murders of non-Serbs, destruction of cultural monuments, sieges of cities and intentional starvation of civilians - in short, they pretended not to recognise genocide.



Instead, they chose to call it a civil war and deemed the actions of the VRS and paramilitaries by the euphemistic term “ethnic cleansing”.



In doing so, they justified their failure to defend the rules imposed on the world’s governments by the Genocide Convention of 1951 - which outlaws the intentional destruction of a national, ethnical, racial or religious group “in whole or in part”.



In those difficult days, the Bosnian government realised that the world was divided into two.



There was the world of dominant western politics, with respect for military power, and then there was the world of civil society that saw the genocide in Bosnia for what it was.



For a long time, these different perspectives gave the late Yugoslav president Slobodan Milosevic a schizophrenic profile in the eyes of the world - some regarded him as the guarantor of a stable Balkans, while others saw him as a war criminal.



One question that has puzzled many is, “Why did the Bosnian government bring genocide charges against Serbia and Montenegro to the ICJ in 1993?”



By that time, hadn’t they lost faith in the international community and the idea of justice? Or had they decided to look for it in a place where moral values should be preserved?



In bringing the lawsuit, Bosnia moved its appeal for action to be taken against Serbia from the Security Council to the International Court of Justice, from the politicians to the judges.



In doing so, it hoped to remind the Security Council of its obligation under the genocide convention, and to give them legal justification to use international forces.



Faced with the prospect of the destruction of its people, the only option left for the Bosnian government was to trust the court.



It had faith that its judges would preserve the values seemingly abandoned by politicians.



According to the United Nations, the simmering conflict in Bosnia was a civil war and ethnic cleansing, and therefore the international community was under no obligation to intervene.



But in July 1995, this ethnic cleansing intensified, as Bosnian Serb forces killed thousands of Bosniaks in the UN enclave of Srebrenica in a matter of days.



The scale of the Srebrenica massacre, coupled with the fact that UN troops had failed to protect them, forced the international community to begin military intervention.



Against all principles of international law, the perpetrators of the genocide were subsequently rewarded for their crime with half of the territory of Bosnia, after the formal establishment of Bosnian Serb entity Republika Srpska, RS, which continues to exist today.



The international community decreed that the bloodshed at Srebrenica was down to the violent actions of individuals, and that it had nothing to do with institutions in Serbia or in RS.



The ICJ judgment of February 26 lends partial support to that interpretation of events.



According to the judgment, crimes that occurred before July 1995 can be characterised as ethnic cleansing while only the crimes committed at Srebrenica can be classed as genocide.



This interpretation of genocide is a radical departure from many sociological theories, which attempt to understand the nature of this grave crime.



When considering genocide, there are some issues that all theoreticians agree on.



One such issue is genocide takes time to plan. There have been no cases in history of genocide being planned and executed in a matter of days.



Another widely accepted view is that before the implementation of genocide, it is necessary to dehumanise the group of intended victims in the eyes of the perpetrators.



This is necessary because genocide is collective in nature - for the victims and also for the perpetrators.



This process had taken place when the genocide of Bosniaks in eastern Bosnia began in May 1992.



Muslims were killed in schools, town squares, soccer fields, before the eyes of the Bosnian Serb population.



Not a single protest against these crimes by the Serbian people is recorded.



There were rare instances of Bosnian Serbs helping their Muslim neighbours, but the majority of them were either bystanders or perpetrators in crimes committed against Bosniaks.



So why then did ICJ judges find that Serbia was not complicit in genocide, even though VRS generals Mladic and Krstic were paid by the Belgrade, and even though they were driven by an ideology imported from Belgrade?



According to judges, Serbia was not found guilty of responsibility for genocide because at the moment when the genocide took place, it wasn’t aware that such crime was being committed.



Curious then that the court apparently refused the Bosnian applicants’ request to order Serbia to disclose an edited version of the minutes of the Serbian Supreme Defence Council - the body in charge of the Yugoslav army.



Those same minutes were submitted as evidence in the Milosevic case, but Serbia demanded guarantees from the ICTY not to disclose them to the ICJ.



Imagine if after World War II, Israel had brought genocide charges against Germany to the ICJ.



Let’s say that the Nuremberg tribunal had key evidence which it used to prosecute individual Nazis but refused to give it to the ICJ because it had guaranteed to protect the interests of Germany.



Imagine then that the ICJ refused to order Germany to disclose any of the key documents.



This sounds like a far-fetched scenario, but that’s exactly what happened in the case of Bosnia vs Serbia and Montenegro.



The court refused the request of the Bosnian team to order the disclosure of the minutes of the Supreme Defence Council of Serbia.



Judges in the Milosevic case had those minutes at their disposal when they found there was apparently enough evidence to convict Milosevic on genocide charges in Bosnia - not only in Srebrenica in 1995, but in relation to events that began in 1992.



In a procedural ruling in that case from June 16, 2004, the trial chamber concluded that “there is sufficient evidence that genocide was committed in Brcko, Prijedor, Sanski Most, Srebrenica, Bijeljina, Kljuc and Bosanski Novi”.



It goes on to confirm that it “could be satisfied beyond reasonable doubt that the accused was a participant in the joint criminal enterprise” which had “the aim and intention to destroy a part of the Bosnian Muslims as a group”.



Would a full, unedited version of the meetings of the Supreme Defence Council have altered the findings of the ICJ judges?



Possibly. But the court decided not to ask for them, giving grounds to accusations that they have been swayed by political influence and decided on a compromise that they thought would cause the least amount of problems.



But the judgment, however flawed, marks an important development in international law - as it is the first time the Genocide Convention has been applied at the ICJ.



Significantly, Serbia was also found to have breached international law by failing to use its influence to prevent genocide, and also for failing to cooperate with the Hague tribunal by arresting Mladic.



From now on, all literature on international humanitarian law will include this finding.



Serbia is - and will remain - the first state in history to be tried and found to be in breach of the Genocide Convention.



The judgment also lays responsibility for Srebrenica at the door of the VRS and RS, the politicians of which continue to campaign for full independence for the entity in order to join Serbia.



Despite the flaws of ICJ judgement, its findings not only prevent Bosnian Serbs from asking for independence, but it also throw into question the legality of RS, which some might argue was built on genocide.



If we look at the judgment from this perspective, it seems that decision made by the Bosnian government to pursue their case at the ICJ was worth the effort after all.



Edina Becirevic is senior lecturer at the University of Sarajevo’s Faculty of Criminal Justice Sciences.