Of course by now the verdict is in, and I’m sure everyone has an opinion, whether they’ve read the judgment or not, of the decision. And certainly there have already seemed to be many interesting commentary and critiques on various legal aspects of the mixed verdict.
Yet, one aspect that has stood out to me is the reaction of both Bosniak victim groups and ultra nationalist Serbian groups. The reactions of anger and jubilation are perhaps understandable and not surprising respectively; and I’m certainly not denying anyone, especially victims, their right to their feelings and opinions on this very important subject. However, what concerns me, is not the opinions or the emotional responses to the verdict; what concerns me is that both of the polarized reactions seemingly stem from the same wrong interpretation of the ICJ verdict to mean that the victims did not suffer to the degree that they did; or that both parties are equally guilty of atrocities.
The ICJ must apply strict burden of proof to the findings, and not look at everything from merely an historical or general point of view. Take for example, the finding that only Srebrenica was legally found to be an act of genocide. With regard to the entire Bosnia region; the ICJ decided, much like the Krajisnik judgment did that; that “acts of genocide” occurred; but that the Plaintiff failed to prove the essential “intent to destroy in whole or in part”; aspect of the crime, which is need to secure a genocide conviction. The ICJ ruling itself noted that it looked at the issue of genocide from a very strict legal standpoint, and not from a more inclusive interpretation of genocide. A legal finding that Serbia is not guilty of genocide, or that genocide was not legally proven to have occurred over the entire region should not be interpreted to say that the Serbian government under Milosevic is innocent of complicity in serious war crimes and crimes against humanity that occurred in Bosnia (the trial only dealt with genocide, not with other, extremely serious war crimes). Most importantly, the findings by the ICJ that genocide for example did not occur in Zvornik for example; should in no way be interpreted as to say that the people of Zvornik were not subjected to appalling crimes, systematically organized and carried out, simply because of their ethnicity. In fact, although the ICJ verdict only deals with the issue of genocide; there are several key phrases about other war crimes committed during the conflict. These findings have been somewhat been neglected from analyses, and they bear repeating:
It finds that it is established by overwhelming evidence that massive killings
in specific areas and detention camps throughout the territory of Bosnia and
Herzegovina were perpetrated during the conflict. Furthermore, the
evidence presented shows that the victims were in large majority members of the
protected group, which suggests that they may have been systematically targeted
by the killings.”
"the Court considers that it has been established by fully conclusive evidence
that members of the protected group were systematically victims of massive
mistreatment, beatings, rape and torture causing serious bodily and mental harm,
during the conflict and, in particular, in the detention camps
The court makes similar findings with regard to cultural destruction. These findings also mirror the Krajisnik verdict, which while, as everyone knows, acquitted Mr. Krajisnik of genocide; convicted him of extremely serious crime against humanity crime of extermination, among with many others. The findings in the Krajisnik case also lay out the systematic nature of the war crimes committed against the Bosniak (especially) and Bosnian Croat victims; as well as the fact that these crimes were not merely the “natural” occurrence that happens in civil war, but was highly organized and planned by the RS government under Karadzic. While it is understandable that everyone’s focus is on the genocide issue; that has unfortunately allowed other, extremely serious issues to slip under the radar.
More disturbing however, is that the some of the victims feel, or even worse have been implicitly or explicitly told, perhaps even by people who believe that they are representing their interest; is that the ICJ verdict is a commentary on their victimhood. It is absolutely not. The ICJ ruling is a legal verdict as to the evidence submitted in court. But even so, the ICJ verdict does recognize the enormous suffering of the victims. The legal finding that there was no genocide in Omarska is in no way a statement that the victims of Omarska did not suffer immeasurably. Just like for example, the finding that Srebrenica met the legal standard of genocide in no way brands every Bosnian Serb a “genocidaire” or takes anything away from innocent Serb victims of the war; the legal finding that genocide did not occur in Omarska, in no way insinuates either legally or morally, that the crimes committed by the parties were equal, and that everyone is equally guilty of war crimes and atrocities; or that they were not victims of very heinous and highly organized war crimes. Both the ICJ and ICTY rulings have poked gapping holes in the moral equivalency theory, while at the same time acknowledging the various war crimes that took place during the war.
Beyond just victim groups, I’m also concern that the ultra nationalist groups have wrongfully interpreted the verdict much the same way, that the victims did not suffer to the degree that they did or that everyone is equally guilty of war crimes. I’ve already shown snippets of the ICJ’s ruling with defeat that view; nevertheless I’m concerned that some will see the verdict as cause for celebration. Personally, I don’t think that there is any aspect of this verdict that can cause anyone to celebrate. While the judgment found that the Serbian government is not directly responsible, nor complicit in genocide that occurred; it also found that the Serbian government, because of political, financial and military links to the Bosnian Serb government had a unique influence on the Bosnian Serb government, and that they could of and should of used it to prevent genocide from occurring in Srebrenica, but did not. To me such a verdict is more a cause for direct action to bring Mladic to the Hague and serious inquiry and reflection over the role of the Serbian government to not prevent genocide rather than a cause for celebration. The reaffirmation that the crime of genocide occurred at Srebrenica, by itself should be cause for reflection, not celebration at the verdict that Serbian government is not responsible for the genocide.
Again, my “concern” is certainly not with those who have critiques of the verdicts, or who have personal opinions, whatever they may be, of the verdict or of the issues brought up; my own personal view for example, is that the 1992-1995 war was genocidal in nature; but of course history has a different burden of proof than a court of law. My concern lies with those who will see this verdict not as a legal finding based specifically on the evidence submitted in court as to whether the Serbian government is guilty of genocide; but on whether the victims suffered and to what degree they suffered. And that is something that can never be measured.