Tuesday, March 20, 2007

The International Court of Justice Verdict--Serbia Not Guilty

I have been meaning to weigh in on the ICJ Verdict of February 26. Roger Lippman was kind enough to email me a copy of this article by Peter Lippman, which has already been reviewed at the always-informative Bosnia Vault blog.

Lippman is, in the main, right on. The most damning part of this verdict was that it concluded that genocide was only committed at Srebrenica. I understand the focus on the issues of intent and responsibility, but this is the most serious shortcoming of the court's ruling. I understand the desire to set the bar extremely high as far as assigning guilt and responsibility (although "understand" shouldn't be read as "unquestioning agreement"), but the court was not free to rewrite history or reinterpret the meaning of the term "genocide."

The court had an opportunity to weigh in in a manner befitting a clarification of the historical record. Unfortunately, they failed miserably.

So for the most part, Lippman speaks for me, although unlike him I do see a silver lining. Oddly enough, that silver lining was echoed by not-my-favorite-writer-on-Bosnia Misha Glenny in this article from The Guardian.

I disagree with Glenny much of the time, and he seems awfully quick on the draw with his preemptive "I am not a Serb apologist" disclaimer at the beginning, but there is a germ of a good idea in this article, if you look hard enough (I had to squint--but it's there).

Glenny is correct to note that this verdict will remove the justification for a continued martyr complex by Serb nationalists; they no longer can hide from their own culpability behind the self-aggrandizing myth that they are being persecuted by the outside world. Bosnia's future depends, to a very great deal, not only on its relations with Croatia and Serbia but on popular opinion in those two countries. Bosnian Serbs, for the foreseeable future, still look to Serbia for much of their cultural and social orientation. A Serbia which is hostile and resentful toward the Bosnian government and the Muslim plurality will surely poison relations between ethnic groups in Bosnia to a degree that its fragile and tenuous stability cannot manage indefinitely.

That said, the rest of Glenny's article is about what you would expect from him. His point of view is founded on his deep-seated conviction that outside intervention is situations like Bosnia are naive and doomed to fail; by referring to the Lord's Resistance Army as an example of realpolitik in action, he shows his cards--it would be child's play for a well-armed NATO force with a mandate to use force to handle the Lord's Resistance Army, but unfortunately we know all too well that the international community is more than willing to "let Africans handle problems in Africa," as we did in Rwanda and as we are doing in Darfur.

Glenny doesn't acknowledge this, because to do would be to bring up his opposition to intervention in Bosnia in the 1990s. His argument is that in situations of international human rights violations, putting justice ahead of politics is impossible because you have to deal with the perpetrators of these crimes in order to defuse the crisis. A point of view which makes sense--as long as you accept the premise that the international community must always stand aside and leave the locals to their fate.


Daniel said...

Genocide is extremely hard to prove. Plus, lawyers representing Bosnia-Herzegovina were incompetent. I don't even think they brought any witnesses for such a high-level case. They strongly relied on evidence collected by the ICTY, but as we all know, Milosevic cheated justice by dying and avoiding conviction on 66 counts of genocide and crimes against humanity.

PS: Check this site:
They have lots of material with respect to international justice, UN, etc.

Shaina said...

Thanks for the post; and for the plug as well ;-)

This is a tremendously important issue that goes far beyond the Balkans; and deals with the legal definition of genocide; how one applies the convention. All of these issues are important and have tremendous legal and political consequences.

However, putting aside genocide, and the ICJ's verdict for a minute; I think one aspect has been missing when people have been analysing and debating the ICJ and ICTY genocide rulings. And that is the seriousness and importance of the Crimes against Humanity. This was especially true with regard to the Krajisnik verdict; and the reaction to it. While of course it is understandable that the main focus and debate would be over the acquittal on the genocide charge; the media and pundits practically ignored the Crimes against humanity that Mr. Krajisnik was convicted of.
Sometimes, it feels that with all of the focus on genocide; other extremely serious violations of international humanitarian law; such as extermination, murder, forced tranfer; have been given the brush off.
The result seems to be three fold:
1. The tremendous seriousness of crimes against humnanity have been greatly understated.
2. Victims have sometimes been led to believe that a not guilty verdict on genocide is a statement as to the validity of their suffering.
3. Nationalists groups have been using the not guilty verdicts on genocide to greatly obscure both the legal findings of what happened; and the historical record. ( I was especially flabergasted by those people who somehow interpreted Krajisnik "only" being convicted of extermination to represent a victory)

Even among people who don't fit into the previously mentioned catagories; I've seen them (wrongly) interpret the no genocide ruling to mean that all sides in this conflict were equally guilty of atrocities; or that it was a pure civil war.
As if there are only two extremes when it comes to war crimes; a wholesale extermination campaign on one end; or a civil war where no party bears anymore blame than the other for atrocities committed.

For a recent example, take Darfur. The UN investigation has said that the mass atrocity campaign isn't genocide; because it isn't based on an attempt to destroy the Black tribes; "as such." Now, ignoring the splitting hairs definition of genocide; the real consequence is how that defines Darfur in public opinion. Because there is no 'genocide' Darfur has seemingly ceased to become an issue anymore in public consciousness. In other words; (and I realize i'm probably being a tad bit overdramatic, and over generalizing here) "mere" crimes against humanity do not seem worthy of our intervention; or even concern.

That is not to lessen the importance of genocide at all; just to point out that in all of our debates over genocide and such; we shouldn't allow the importance of crimes against humanity to become obscure.

AndrĂ¡s said...

Like Daniel, I'm disappointed in many ways with the ICJ's verdict. But I disagree with his comments. Bosnia's lawyers were in fact competent. And they did call some witnesses; I was one of them. You can read
my testimony and what the judges said about it in their verdict. Keep in mind that -- unlike criminal courts such as the ICTY -- the International Court of Justice is not accustomed to calling witnesses at all. It's not how the court operates. I was told that mine was the first live witness testimony that the Court had heard since 1991 and it was only the tenth time that witnesses had been heard by the ICJ since it was formally established as the highest judicial body of the United Nations 60 years ago.

In any case, I doubt that having more witnesses about crimes would have made the crucial difference as far as proving Belgrade's responsibility for genocide in Bosnia. What the ICJ judges apparently wanted, and which Bosnia's lawyers were in no position to provide, was pieces of paper -- unredacted documents from secret sessions of Milosevic's government that could be used to establish intent.

While the ICTY had the power to obtain such documents from Belgrade, the documents were provided by Serbia with the proviso that they would remain confidential and could not be shared with other parties. There may well be compelling evidence in documentary form inside a locked vault at the ICTY, just a 20-minute walk across a park from the ICJ's premises in The Hague. Some of that evidence may never be seen by anyone other than the ICTY judges, who are not allowed to share them with their colleagues at the other international court at The Hague. Some may be revealed in the course of the upcoming trial of Momcilo Perisic. But in any case General Perisic will be tried as an individual; whatever comes out in his trial will have come too late for the ICJ case, which after more than a dozen years is now over.

Although Bosnia got a mixed verdict from the ICJ instead of the clearcut ruling it had hoped for, the verdict has a number of positive aspects as well from Bosnia's perspective, even if some of the reactions by politicians and the media may suggest otherwise. One has to wonder how many of those media commentators have read even a single word of the ICJ judgement before rushing to comment on it.

And I agree with Shaina that while Milosevic may have cheated justice by his self-inflicted death, his was far from being the only case before the ICTY, and that the "g-word" is not where it begins or ends -- crimes against humanity are terrible enough. Before you give up on justice at The Hague, please read the verdict in the Krajisnik case, or other ICTY cases -- such as the ones on Srebrenica, Prijedor, or Foca. The crimes committed in Bosnia in 1992-95 have not been forgotten. But justice will not be done as long as Karadzic and Mladic remain at large.

Shaina said...

Coincidently, I just happened to re-read (although this time much more thoroughly,) the Krajisnik judgment yesterday. It does contain some very important legal findings about the planning and scope of the war that have been obscured in many media reports:

1. The verdict confirms that the 'ethnic cleansing' was not simply the byproduct of war; but was planned and organized.

2. Furthermore, that it were planned and organized from the very top level of the Bosnian Serb leadership; and not simply the acts of random municipal officials, or paramilitary leaders.

3. The verdict also confirms the
discriminatory nature of the crimes; that the victims were killed solely because of their ethnicity.

4. The verdict also points out the specific and acute victimization of the Bosniak population in BiH. That they were "specifically targeted for murder and extermination" and the "wipe out of traces of the Muslim culture and religion."

It will be interesting to see what evidence will come up in the Perisic case.
It is too bad that Milosevic died before a verdict could be reached; not only because he personally cheated justice; and cheated his many victims of a chance to have legal redress against him; but also for the evidence (especially given in closed session) might have revealed.

I completely agree that justice will always be incomplete as long as Karadzic and Mladic remain at large; and as long as there are some people, whether they are in the Serbian government, or the international community who are not committed to sending K&M to the Hague.

Owen said...

Shaina, I don't understand why the ICTY didn't find Krajisnik guilty of genocide. To me as a layman there seemed adequate evidence of "mens rea".

Andras, I presume it's because of the structure of civil proceedings in the ICJ, involving adversarial claims and counterclaims by nation states, that the ICJ doesn't have the power to order the ICTY to disclose relevant evidence. This seems a major shortcoming when it's dealing with issues covered by treaties such as the Genocide Convention. When civil and criminal law intermesh there should be some form of formal relationship that allows the highest level fora - ICJ and ICC/ICTY etc. - to compel each other to disclose relevant evidential material to one another.