The case of the missing documents

As we have found out a few weeks ago, the ICJ ruled in Bosnia v. Serbia case, without seeing the Serbian government's complete archive. Recently, ICTY prosecutor Geoffrey Nice has alleged that ICTY chief prosecutor, Carla DelPonte was behind this, presumably to assure that that the ICTY would get the conviction of Milosevic the indvidual; at the expense of the state government aparatus of Serbia being found responsible in the ICJ trial. Of course, with Milosevic's (sort of) premature death; if that was indeed the case, that plan obviously backfired horribly. It would not come as a surprise that the ICTY rejected Nice's allegations.
Meanwhile, Del Ponte has somehow been moonlighting as a older version of Turbofolk star, JK. ;-)

At the heart of this matter, is the rhetorical question of whether or not the documents, given the very narrow interpretation of the law, would have effected the outcome of the case.

ICJ Verdict: Repercussions and Reflections

Bosnia Institute has published a collection of articles from leading democrats from Bosnia, Croatia, Montenegro and Serbia.

Some good essays

The ICJ ruling is back in the headlines. Included in this latest collection of articles related to the ICJ ruling are two well written essays from Diane F. Orentlicher and Sevima Sali-Terzić .

Editorial on the ICJ ruling

I know the ICJ ruling is now considered "old news"; but I thought this recent editorial by Peter Lippman hit many good points; not only on the judgement but on the ramifications for all of Bosnia.

Slobodan's Last Waltz

With the ICJ ruling corresponding roughly with the 1 year anniversary of Milosevic's death; Slobo has certainly made the news rounds lately!

An op ed on the ICJ ruling and Milosevic:
Article

I don't really agree with this statement though:

The court's judgment has broad implications. It amounts to a posthumous
acquittal of Mr. Milosevic for genocide in Bosnia.

For one, as other analysts have explained the ICJ ruling does not have a direct correspondence to Milosevic's guilt or not guilt. Only the judges in the Milosevic ICTY case know how the evidence that was introduced (including the evidence that was submitted in closed session) was perceived by then.
This of course does not mean that the judges would not have found Mr. Milosevic not guilty of genocide. While most analyses that I've looked at noted that the prosecution proved the other 60 odd crimes against humanity and war crimes Milosevic was accused of, there have been debate amongst legal experts and Balkan specialists over whether the prosecution proved the intent to destroy, that is necessary to commit genocide.
The point however is that the ICJ ruling can not be read as an absolute sign that Milosevic would have, or would not have, been acquitted of genocide.
Of course, whether he would have been given the distinct honor of being labeled a genocidaire by an international court is a moot point now that his case is null and void; and with the exception of a curious mixture of ultra-nationalists right wing extremists; and ultra-leftists extremists; Milosevic is still a mass murderer.

Dworkin on the ICJ verdict

Found this article way of East Ethnia:

More recently, in the case of Darfur, we have seen that debates about whether a particular situation constitutes genocide can seem to translate over into an argument about how terrible the events in question really are. We should be careful not to lose our sense of perspective about the relative gravity of genocide and other crimes, and to make genocide alone the trigger for the highest level of international concern. The exceptional moral force that the notion of genocide has acquired should not lead us to forget that it is in legal terms a precisely defined and limited crime and that atrocities that do not satisfy its criteria may still challenge the conscience of humanity.

Full Article

Interpreting Legalese

East Ethnia offers a break down of some major points of the ICJ verdict. As well as a list of links to commentary by lawyers, including those directly involved and not directly involved in the case.

ICJ judgment significant despite flaws

Ruling marks an important development in international law - the first time the Genocide Convention has been applied at the ICJ.

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.

Certainly the fact that some Bosnian Serbs helped the paramilitary groups track down, imprision and kill their neighbors should not be ignored or in anyway sugarcoated, but the exceptionally brave few who in many cases risked their lives to save their neighbors should not be ignored either; I know I have read several anecdotal stories of Bosnian Serbs who helped their Bosniak neighbors. Svetlana Broz has written a book about Bosnians helping Bosnians during the war. Bosniaks helping Bosnian Serbs, Bosnian Serbs helping Bosnian Croats, Bosnian Croats helping Bosniaks and so and and so on.

read the full article here

The IJC ruling and the RS

Initially relieved that Serbia had been acquitted of genocide, Republika Srpska worries about the judgment's implications for its future.

Read the full article here.

Genocide Acquittal Provokes Legal Debate

Dr Robert Cryer, an expert on international criminal law from the University of Nottingham, is also concerned that undue emphasis is placed on genocide.

In relation to the ICJ ruling, he said, “It’s important to remember that just because an atrocity may not meet the strict definition of genocide, that doesn’t make it acceptable.”

Read the full article here

BiH Lawyer on ICJ case

Excerpts:

General: My general feeling about the Judgment is that the outcome is
for Bosnia and Herzegovina not to be appreciated in terms of winning or
loosing, but rather in terms of counting one's blessings. There is,
obviously, not enough for us in the Judgment to declare total victory,
but on the other hand the Judgment contains quite a bit of important
findings providing for reasons to be rather satisfied.

Read the full article here.

The ICJ Verdict: Trends, Consequences, and more

Croatian v. Serbia: As of yesterday, Croatia was still considering charging Serbia with genocide. The Croatian PM did note that they would study the recent ICJ judgment as well. IMO, in light of the ICJ judgment in the Bosnia case, I cannot possibly imagine Croatia even thinking it has a case that it can successfully prove. The JNA's involvement in Croatia however is more obvious than even in Bosnia; and I wouldn't be surprised if Croatia is able to negotiate an out of court settlement with Serbia to pay for damages as a result of JNA/Serbian Paramilitary actions. That would probably be the best result for everyone, because it would give (at least some) of the victims some compensation, without having to drag through a court case where they have no chance of proving genocide.


Bosnian Serbian Relations: A lot of common consensus I've read on other blogs have noted that the verdict was the best possible outcome for not inflaming the tepid/tense Bosnian-Serbian relations. Any more thoughts on possible outcomes this verdict could have on future state-to-state relations between Bosnia and Serbia? It is also my personal opinion that even though Serbia is certainly not legally obligated to pay anything to Bosnia re: the ICJ verdict; it would certainly be morally the right thing to do, imo, for Serbia to pay some compensation, even just a token compensation (and any form of compensation is going to have to be "token", because it cannot possibly pay for the full financial damages, let along personal and emotional damage suffered).


RS Status: In wake of the verdict, some Bosniak politicians, most notably President Haris Silajdzic have become much more vocal in their insistence that the RS be demolished. Former Ambassador Muhamed Sacirbey argues that Srebrenica and Zepa should be revoked from the RS.
Even Tomislav Nikolic realizes the verdict was damaging to the RS. Just a few days after the verdict, the RS government officially apologized for war crimes committed against non Serbs.

Serbian Politics: The LDP has urges a resolution condemning the genocide in Srebrenica. The move is supported by President Tadic; but the SRS, the Socialist Party of Serbia and Kostunica's Democratic Party of Serbia says that it would only support a resolution that condemns all war crimes.

Serbia and the EU: What effect will the ICJ verdict have on Serbia and the SAA? For some trends, see here here and here.


Darfur: Remember Darfur? Some time ago, Darfur was in the news quite a bit, as the United States made the argument that the crimes against humanity that was occuring in Darfur amounted to genocide. The UN concluded that there was no attempt to detroy the tribes as "such" therefore, massive crimes against humanity still occur, but now without much international interest or incentives for governments to stop the atrocities. For some pundits, the Bosnia verdict has shown just how tough it is to prove genocide; and how difficult it is to prove genocide in cases like Darfur. For some, this is based less on the lack of evidence pointing to genocide, but more towards the extreme rigidness, and narrow interpretation of the genocide convention; an interpretation that Raphael Lemkin, who created the word "genocide" never intended to be so rigid. A more positive flipside is that in the wake of the verdict, it is shown that legally states can be held accountable for genocide; which hopefully isn't lost on the Sudanese government. And hopefully even more, the fact that according to the UN, the atrocities that are committed against those in Darfur does not reach the threshold of "genocide" does not diminish their seriousness or brutality. In the words of a LA Times op-ed,

No matter what we call them, we know horrible atrocities when we see them. Such crimes, on their own, should be met with political, humanitarian and, when necessary, forceful responses.

Croatia Shelves Demand for War Damages from Montenegro

Article

This week’s ICJ judgment in the genocide suit that Bosnia and Herzegovina brought against Serbia is seen as a warning that the judicial route to compensation is unlikely to produce results.

On February 26, the court largely exonerated Serbia of responsibility for wartime genocidal acts in Bosnia and Herzegovina, ruining Sarajevo’s hopes of securing reparations from Belgrade.

Luka Brkic, a professor of international economic relations at Zagreb University, told Balkan Insight that the verdict had important implications for Croatia’s international lawsuits.

“Croatia won’t get a judgment [against Serbia at the ICJ], which would be the grounds for getting reparations out of Serbia,” he predicted.

Defining genocide and the law

The opinion piece of Martin Shaw in The Guardian.


These debates are nothing new, during the Milosevic case, there were similar debates over whether the Prosecution had proven Milosevic's legal guilt for genocide; and whether the bar to legally prove genocide was impossible to meet.

A Balkanized Verdict

From Time Magazine:

The court has spoken but, in issuing a Balkanized verdict — with a little bit for every party — it has allowed nothing to change in the Balkans.

Article

NYT Article

An article from the NYT covering many different aspects of the ICJ verdict.
ICJ Article

Media Headlines

The interesting thing of a compromise verdict is not only that everyone can have a part of the verdict to agree or disagree with (or maybe even to agree or disagree with the entire judgment); but to see how the newspaper headlines cover such a mixed verdict, and what aspect they focused on, since there were many aspects of the verdict. Just a preliminary running of the headlines, most headlines focused on the acquittal on the genocide charge; with a good chunk also focusing on the failing to prevent and punish genocide.


Just a few sample headlines...


"Serbia not guilty in genocide trial."


"Serbia cleared of genocide charge over killing 8,000 at Srebrenica."

"Serbia Failed To Prevent Genocide."

and a headline which actually seems to get most factors of the verdict in the headline: "Serbia not directly guilty of Bosnian genocide, but failed to prevent it."


or this headline: "Serbia cleared in genocide, to a point."

Mr. Milosevic's Ghost

Although his "untimely" death (and untimely in the sense that it did not allow for a verdict to be rendered; for the people of the Balkans they would be much better off had Mr. Milosevic passed away almost two decades before he ultimately did) rendered the case against him legally obsolete. Nevertheless, Milosevic's presence isn't completely obsolete as Observer at Neretva River ponders what the ICJ verdict has to say about Mr. Milosevic's legal guilt for genocide.
And some days ago, Andras from the justwatch-l discussion group noted that the ICTY has not had unrestricted evidence to the Serbian government's files; and that because the case never actually came down to a verdict, there is no way of knowing whether the ICTY could effectively prove Milosevic's legal guilt.

A "genocidal" people

A number of people on the political fringes have tried to show that a guilty verdict against Serbia would mean that Serbia is a “genocidal nation” and that the average Serb will have to bear a cross as being labeled part of a “genocidal people.”
While such phrasing does make for good headlines and appealing sound bites, not to mention, good political slogans to use on the latest campaigns; that view completely misses the point of the trial and the verdict. The trial was never about branding the Serbian people with the red letter “g” for genocidaire. The trial was about whether the Serbian government, through its organs and personnel committed genocide. Even if the verdict affirmed all of Bosnia’s claims; it still would not have labeled the Serbian people as being genocidal. As Andras Riedlmayer explains here, in a way the the ICJ trial is not too different in concept from the trials of citizens suing towns or city halls for discrimination. An affirmation that one was discriminated against, does not render every single person in that town guilty of discrimination; but the specific people and city government institutions that are responsible for said act of discrimination. Nevertheless that view is perhaps too nuanced and rational for some nationalist politicians who need to see everything in such over generalized and dramatic terms in order to cause enough worry and fear amongst the average person that usually leads to such nationalist politician being elected in the first place.

Reactions to the ICJ Verdict

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.