a citizen’s journal by Thomas Nephew

ICJ: Srebrenica was genocide. Serbian police were involved…

Posted by Thomas Nephew on February 27th, 2007

…yet Serbia cleared of genocide, failed to stop killing (Alexandra Hudson, Reuters):

ICJ President Judge Rosalyn Higgins said the court concluded that the Srebrenica massacre did constitute genocide, but that other mass killings of Bosnian Muslims did not.

But she said the court ruled that the Serbian state could not be held directly responsible for genocide, so paying reparations to Bosnia would be inappropriate even though Serbia had failed to prevent genocide and punish the perpetrators.

A summary of today’s rulings can be read at the International Court of Justice (ICJ) web site, along with detailed verdicts and dissents and a recording of Judge Higgins’ reading of the decisions.

Tuzla women react to ICJ ruling. Photo by Damir Sagoli - Reuters
This photo accompanied the Washington Post paper edition of the linked story.
Its caption: “Surrounded by photos of victims of the 1995 massacre of Muslim men
and boys in Srebrenica, Bosnian women in Tuzla react to television news reports
from The Hague, where the International Court of Justice ruled that the Serbian
government, which had helped arm and finance the Bosnian Serb forces, was not
responsible for the genocide.”
(Photo by Damir Sagoli – Reuters)

Fifteen select judges took a long time to come to these decisions, and did so by fairly sizeable margins (13-2 against Serbian responsibility for genocide, 10-5 for having jurisdiction, 11-4 not even complicit in genocide, for crying out loud, etc.).

Let’s assume for the sake of argument that they came to the best decision they could in accordance with international law and specifically the international law of genocide — despite being aware that Serbian police units were videotaped participating in Srebrenica killings; that the International Criminal Court had enough evidence to put the Serbian head of state Slobodan Milosevic on trial for genocide; and that one of the chief architects of the Srebrenica massacres, “General” Ratko Mladic, remains at large and has been acknowledged to have been on the Serbian military payroll after going underground.

We may therefore provisionally conclude that either that body of law or its application by the worthy jurists of the ICJ is so limited as to be useless. This seems like a black day for justice as mere laypeople like me or those waiting for justice in Bosnia will understand it.

Useless? Useless at best. Between them, Serbia and the ICJ have now apparently identified the level of deniability and legal hocus-pocus needed to dodge a genocide verdict and the reparations that might have entailed. I wonder whether that’s what the ICJ’s judges, creators, and supporters intended, but I think that’s what they got. In the future, the piety that “if you want peace, work for justice” will have a bitter, fraudulent ring if you’re from Sarajevo, if it didn’t already. To say nothing of Srebrenica. You’d be much better off praying for close air support, or taking up arms with a fury yourself. Darfurians will be justified to take note. In fact, they’d better: the Sudanese government certainly will.

ADDENDA: From Judge Vice-President Al-Khasawneh’s dissenting opinion:

…the Judgment considers two documents presented by the Applicant, in which there is reference to the “Scorpions” as “MUP of Serbia” and a “unit of Ministry of Interiors of Serbia”. The paragraph notes that the authenticity of the documents was disputed by the Respondent presumably because “they were copies of intercepts, but not originals”. But it is plain that if the Court insisted on original documents, it would never be able to render any judgments. Be this as it may, the other reason advanced to undermine the importance of these documents is that they are not addressed to Belgrade, the senders being “officials of the police forces of the Republika Srpska”. But this in itself does not deny their probative value. When an official of the Republika Srpska sends a telegram to his superior in which the Scorpions are described as “MUP of Serbia” or “a unit of Ministry of Interiors of Serbia”, there is no reason to doubt the veracity of this statement.

From Judge ad hoc Mahiou’s dissenting opinion as translated by ICJ (emphases added):

I cannot subscribe to most of the substantive findings reached by the Court by way of what I believe to be: a timorous, questionable view of its role in the evidentiary process, a deficient examination of the evidence submitted by the Applicant, a rather odd interpretation of the facts in the case and of the rules governing them and, finally, a method of reasoning which remains unconvincing on a number of very important points. […] In my view, the Respondent’s responsibility appears clearly established in respect of Republika Srpska’s actions, either because of the very close ties between that entity and the Respondent, resulting in the Respondent’s implication in the ethnic cleansing plan carried out between 1992 and 1995, or because of the relationship of subordination or control between the Respondent and those who played a crucial role in that ethnic cleansing, which extended to the commission of genocide in Bosnia and Herzegovina.

EDIT, 2/27: Photo, caption added.

12 Responses to “ICJ: Srebrenica was genocide. Serbian police were involved…”

  1. » Blog Archive » Nuhanovic’s choice — and his son’s question Says:

    […] in «« prior: ICJ: Srebrenica was genocide. Serbian… next: Where’s Ratko? […]

  2. Nell Says:

    Just as Janis Karpinski was technically in command of the Abu Ghraib prison, and coincidentally the highest-ranking person who is ever going to be found guilty in our “justice system” for the crimes committed there by U.S. personnel — by the logic of the ICJ the United States government owes nothing to those men, women, and children who were tortured and raped there.
    This is the worst kind of narrow legalism perverting justice.

  3. Thomas Nephew Says:

    “This is the worst kind of narrow legalism perverting justice.”
    “…by the logic of the ICJ the United States government owes nothing to those men, women, and children who were tortured and raped [at Abu Ghraib].”
    Maybe. My understanding of the rationale is that the indirect (so it’s argued) connection of Serbia to Srebrenica got them off the hook. Ie, the ICJ said it was the Bosnian Serb Republic — not Serbia per se — that did all of the deeds, esp. since they decided to treat the Serbian “Scorpion” special police force actions as BSR actions. So Serbia achieved legal deniability for Srebrenica that the US would presumably not have for Abu Ghraib. It’s a load of bull, because the Bosnian Serb Republic was basically a wholly owned subsidiary of Serbia, full of people who were basically seconded to the BSR for the duration. Thus Ratko got back on the Serbian payroll (if he was ever off it) after the war.
    While the US crimes in Abu Ghraib and elsewhere might not have the same “cool” feature of outsourcing the crime to a second “government” or entity, Sudan might have the same kind of deniability: “hey, it’s the Janjaweed doing all that bad stuff in Darfur, not little old us.”

  4. » Blog Archive » Where’s Ratko? Says:

    […] of course I was kidding myself. Now that Serbia has been acquitted of genocide by the ICJ (the acronym stands for “International Caricature of Justice“), […]

  5. Nell Says:

    So it’s more like the judge who decided to let Custer Battles off the hook for stealing millions of Iraq reconstruction $, because — wait for it — the Coalition Provisional Authority is not part of the U.S. government.
    It existed, apparently, in its own, accountability-free zone, where no law could touch it.
    Except, perhaps, a future World Court, should this country ever decide again to acknowledge the authority of the court. (Which might be the one bright spot in the court’s weak performance in the Srebenica case — it could lure a future U.S. administration back into the court’s jurisdiction.)

  6. Nell Says:

    I’m surprised and a little appalled that your blog is still the only place I’ve seen covering the ICJ ruling. I’d have thought Laura Rozen would at least mention it. Michael Berube probably would have if he were still blogging. But everywhere… silence. Maybe it’s the circles I read in.

  7. Thomas Nephew Says:

    Well, we’re in our own pickle these days, people are right to pay the most attention to that. Iraq/etc. is our responsibility, this ICJ/Serbia/Bosnia matter isn’t.
    I haven’t seen this mentioned elsewhere, either, haven’t gone looking for it either, though. Guess I read +/- the same blogs you do. You’re right, I’d have thought Rozen would have mentioned it. OTOH, I’ve felt guilty for not mentioning the Employee Free Choice Act or the e-voting legislation pending in MD — as if me mentioning it will turn the tide or something. (I’ve been pretty busy the last week too, come home and just fall asleep.)
    I’ll go look at the Post article, they always show who links to a given article… Not many, just 8. At least 2 good, thorough looks at the verdict: “License to Kill,” (very good title), by Mash (“Or how I learned to stop worrying”); makes +/- the same plausible deniability point I did. Great minds think alike, and mine besides. Also “Bosnia & Herzegovina v. Serbia” by Martha Bixby at “Lives in the Balance”; more of a straight report. Ms. Bixby is a Georgetown U. foreign relations student focusing on genocide prevention, and a Darfur activist.

  8. Mash Says:

    Glad I found you via your comment. This verdict has not generated much news at all. Yet, I think the ramifications are quite significant as you have also pointed out.
    I cross-posted on DKos and the diary got a very small audience.
    The dissenting opinions that you cited are very illuminating. I get the feeling the court bent over backwards not to find Serbia guilty. My personal feeling is that they reached the verdict first, and then shaped an argument to support it.
    A real low point for human rights.

  9. Thomas Nephew Says:

    Thanks for dropping by. I’d started to think Nell and I (and a few others who drop by here) were the only ones who’d noticed on the East Coast.
    Dan Kahan at Georgetown U.’s “Exploring International Law” blog adds another unbelievable detail: “The application of Bosnia and Herzegovina was filed in 1993, meaning that the litigation in the case has spanned over almost 14 years.” (emph. added.) He continues: “This is not a trivial detail. Even if the case does open the door for more genocide litigation between states, it remains to be seen whether a decade-and-a-half judicial process that affords no monetary relief to the prevailing party can really be considered a Â?victoryÂ? for anti-genocide efforts.” Well, no, it doesn’t remain to be seen. Call it what it is: a defeat for anti-genocide efforts, a slap in the face to the widows of Srebrenica, a yawn and a shrug for Bosnia.
    There’s also some guy at “opinio juris” who shouldn’t have bothered posting a comment in the first place — paraphrasing: “looks kinda reasonable, gotta run” — and I won’t bother linking to him.
    UPDATE, 3/2: Chris Bertram at “Crooked Timber” mentions the ruling in a short post, “The ICJ’s Perverse Judgment,” calling it a “feeble verdict.” He links to a more extensive discussion by Martin Shaw at openDemocracy, who states the other huge problem with the verdict — that only Srebrenica ‘counted’ as genocide: “This judgment is perverse: Srebrenica was a particularly murderous culmination of all that went before, but there is no good reason to think that it was only at this point that Serbian state leaders, the Bosnian-Serbian nationalists and the Bosnian-Serbian army developed an ambition to destroy the Muslim community. On the contrary, it is difficult to understand most of their actions over the previous three years without taking into account precisely this kind of intention.”
    2D UPDATE, 3/2: A worthwhile analsysis by David Luban at “Balkinization.” Among other things, he says that “The domestic-law equivalent would be exonerating from a charge of complicity in a hate crime someone who buys guns, ropes, gasoline, and bed sheets for the local Ku Klux Klan, on the ground that there is not enough evidence of hateful motivation. DoesnÂ?t it seem pretty clear that buying guns, ropes, gasoline, and bed sheets is evidence of complicity in whatever hate crimes the Klan commits?”

  10. » Blog Archive » Department of followups: terraforming, Wal-Mart, Bosnia, coffee, Gilliard Says:

    […] ICJ: Srebrenica was genocide. Serbian police were involved… (yet Serbia cleared of genocide), February 26, 2007 — In early April, the New York […]

  11. » Blog Archive » Srebrenica: 12 years on Says:

    […] of the atrocity — remain at large. And in February, the International Court of Justice reprehensibly absolved Serbia of responsibility for the massacre — […]

  12. » Blog Archive » Practice to deceive Says:

    […] than nothing. But international criminal courts are no guarantee of justice — just ask the survivors of Srebrenica, who watched the ICC find the ethnic slaughter there was no genocide by studiously ignoring […]

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