I

A municipal-level genocide

Dani: How do you view the judgement issued by the International Court of Justice?

Žarko Puhovski: This verdict is worrying in the longer run because it represents a kind of a banalisation of the role of the Court and of the justice on behalf of which it is meant to be working. It follows in my view from a wrong interpretation of the facts. To begin with, it talks about the genocide in Srebrenica as a kind of local or municipal genocide, as if were necessary to establish that in order to be able to speak of genocide in a given state it is necessary that it took place in every little part of it. One should recall here that Hitler and his regime introduced the system of concentration camps in order to concentrate in them population from other areas of Germany. To say that there was no genocide in Munich, but that in Buchenwald some kilometres away there was genocide, would be an improper interpretation of reality. Many people found in Srebrenica had come from elsewhere, driven there by the military operations in Herzegovina, northeastern Bosnia, and so on. In other words, the issue was wrongly posed in a factual sense. Secondly, the Court has damaged that essential component of international justice introduced by the ICTY which insists on command responsibility by localising it. It did not accept the concept of agents adopted by the ICTY, according to which Serbian state organs (and not Serbian ones alone) operated in Bosnia-Herzegovina. The verdict speaks about the RS military authorities as though they were some soldiers who had escaped control and conducted genocide more or less spontaneously and more or less independently. This is the crucial aspect which seems to me to be very dangerous for the future of international law and the international community.

How do you explain such an interpretation of the facts on the part of the ICJ judges?

Possibly by a combination of insufficient clarity in the charge levied by Bosnia-Herzegovina, lack of knowledge of the situation on the part of the Court and, dare I say it, political considerations. We are dealing here not only with legal but also with political-ideological aspects, possibly influenced by political considerations. International law functions traditionally within a triangle composed of politics, law and morality. Once morality was gone, there remained just a unilateral relationship between law and politics; and it seems to me that here politics trumped the legal debate. One might say in defence of the Court that there is no precedent on this issue at the level of relations between two states. There is only one decision that is relevant to this case. It is the decision of the United Nations General Assembly in 1972 referring to the genocide committed in Sabra and Shatila during the civil war in Lebanon; but here too there is no mention of state responsibility, but only of the responsibility of the Falange. So it has clearly been difficult for them, for several generations of lawyers and politicians, to ascribe the crime of genocide to a state. It is important to stress that the term ‘state’ used here should be understood in its contemporary technical sense as the administrative apparatus, the complex of institutions, rather than the land of Serbia or the people of Serbia. The judges should have said - but they instead denied - that the Serbian state organs not only failed to punish the perpetrators of genocide, but also organised, facilitated and - which seems very important to me - prepared that genocide through propaganda and advocacy of a certain world view.

How do you interpret the condemnation of Serbia for not preventing genocide? Is there not a contradiction in saying at one and the same time that Serbia did not take part in genocide, yet was able to prevent it?

This confirms my view that the Court interpreted justice in a minimalist fashion. They behaved as if, for example, troops had gone from Hungary or Bulgaria to Bosnia-Herzegovina, and had moved across and supplied themselves from Serbia in order to commit genocide. This would be a clear parallel, wrongly interpreted in legal circles, with the case of Nicaragua, the Contras and the role of the United States. The United States were undoubtedly behind the Contras’ activities, but the relationship between the two was not remotely as close as the relationship between Serbia and the troops and units which committed genocide in many parts of Bosnia-Herzegovina. In Serbia’s case we are dealing with a single body with a single command - there is no doubt about that. There is also the very important, essential detail: that Slobodan Milošević signed the Dayton Agreement on behalf of the Bosnian Serbs. Someone who concludes a war is someone who must have waged it - started it or at least in some part waged it. So prevention or non-prevention as the element of the verdict , as if it were a matter of a third party - Bulgarians, Hungarians or whoever - who were not prevented by Serbia from crossing its territory or using its resources to attack Bosnia-Herzegovina. Here it is not only the case that there was hardly any prevention, but that Belgrade instigated, organised and commanded the whole thing.

The first reaction here in Sarajevo was that the representatives of Bosnia-Herzegovina were not up to their historical task; that they should have been better prepared and submitted more data. Do you think there is something in that?

I heard a member of Belgrade’s legal team say this yesterday - that the charge was not properly prepared. One of the Bosnian defence lawyers replied that only some data were incorrect - those given out at the beginning, when casualty figures had been inflated. In my view, however, the judgment had been made at an earlier date, and was based not so much on a political as on a philosophical decision, a dogmatic legal decision to accept the concept that a state is guilty of, or responsible for, genocide if and only if a document can be produced that explicitly says: ‘Go and kill all Bosniak males in the area of Srebrenica, or in some village near Prijedor!’, which is hardly likely. No such proof was ever produced at Nuremberg, but with a logical analysis of what was found it was possible to show how concentration camps functioned. In this case it was necessary to use logical analysis to show how the Bosnian Serb army functioned. I should also add something which is often forgotten: that at one point in time the RS assembly declared its intention to unite with the Republika Srpska Krajina and the Federal Republic of Yugoslavia, so that in this regard things were not as simple as the Court suggests.

Some of the reactions in Sarajevo suggest that the judgment reflects also an attitude to Muslims, to their suffering. Should one wholly exclude this aspect?

This cannot be wholly excluded, but my feeling is that something else is involved, something that can be gleaned from the State Department’s comment made within hours of the announcement of the verdict. It was basically this: ‘Let bygones be bygones; let’s turn to the future!’ As if the ladies and gentlemen of the court were persuaded that a more radical decision on their part would have caused more unrest and chaos in this unstable area than this semi-compromise. In other words, they probably did it with best intentions. Justice has not been done, and the only thing we can do is to try and see whether we here, in Serbia, Croatia and Bosnia-Herzegovina, can do better than the ICJ, by ensuring that justice functions less badly than at the international level. This is something of a paradox, in that we all expected international justice to show us the way, but this unfortunately has not happened.

Translated from an interview with the president of the Helsinki Committee for Human Rights in Croatia, Dani (Sarajevo), 2 March 2007

II

The ICJ ruling on genocide in Bosnia-Herzegovina

- a view from Montenegro

‘Mihajlo Mičunović’

The crime of genocide was committed in Bosnia-Herzegovina, for which no one has been found guilty. Neither Serbia nor Montenegro will draw any lessons from this judgment.

Serbia will rightly infer that it has not been punished for the crime of genocide committed by officers who were on the payroll of the general staff of the army of Serbia and Montenegro.

Serbia will rightly infer that by not punishing the crime of genocide the international community has retreated from its erstwhile negative view of it.

Serbia will rightly infer that it has been wrongly accused - that it is not required to account for the crimes it committed, including that of genocide, nor will it be punished for the latter.

Serbia will rightly infer that it does not have to answer for incitement to war or for the dissemination of xenophobia and chauvinism, which led to the genocide.

Serbia will not understand that it is at fault for failing to prevent the crime of genocide, since it has not been punished for it. Without censure and without punishment there is no guilt - this is how the Belgrade ethnic planners will understand the ICJ’s ruling. That Serbia was obliged to prevent the crime of genocide committed at Srebrenica but failed to do so, the Belgrade ideologues will secretly reckon, is in fact a most fortunate thing, because had Serbia reacted the crime would not have been committed. That crime, the crime of genocide at Srebrenica, was a product of Serbia’s will, as were other mass crimes in Bosnia-Herzegovina: part of a plan and an intention to create ethnically pure territories. Was it realistic to expect Serbia to prevent something about which its ideologues and moralists have been dreaming for many years and decades?

No one will ask, of course, what led to the genocide in Srebrenica, and to the other war crimes committed by the Bosnian Serbs. What kind of political mind or ethical consideration could have conceived and planned the crime of genocide? Only one that still feeds on chauvinism and xenophobia, which continue to this day to emanate from Belgrade. Why should Belgrade not feel happy? It invested all its intellectual, political and moral endeavours into creating a basis for the emergence of an ethnically pure state for Serbs and Serbs alone. It knew in advance, of course, all that the establishment of an ethnically pure state in a multi-ethnic area implied. The realisation of this aim was worth every sacrifice, especially since the price was paid by non-Serbs living in the area that the Serb planners had marked out as exclusively Serb territory. The Belgrade ethnic engineers must have been greatly pleased when it was agreed in Dayton that 51% of the territory of Bosnia-Herzegovina, which they had generously watered with Bosnian blood, belonged to Serbs. They can be truly happy now, when the highest international legal body has determined that, although genocide has been committed in Bosnia-Herzegovina against the Bosnian Muslims, Belgrade is not responsible for it; and that while Republika Srpska may be implicated, no one will have to account for it. Is it not wonderful when you can obtain absolution for your bloody deeds from the highest authority? And obtaining absolution may in the long run mean encouragement for the ethnic engineers to continue with their plan.

Montenegro was not charged, because it had become an independent state before the end of the trial. It was left off by default. The Montenegrin president, carried away by the outcome of the trial, stated in the manner of a good lawyer that it was exceptionally important that Montenegro had not been brought to trial. He did not bother to examine just how shameful and demeaning it is for a state even to be considered culpable of the crime of genocide; nor did he stop to consider, in his capacity as Montenegro’s president, what possible lessons he and his people might draw from this case.

Montenegro will not learn from this judgement. Montenegro will not understand that it is wrong blindly to follow another state, that it should never place its national destiny in someone else’s hands, that it should always and only follow its own interests. It will not even understand that it is incumbent upon it to know what its interests are.

Though Montenegrins are not people who learn easily from the past, they would nevertheless do well to study the comment published by the Sarajevo daily Oslobođenje: ‘All this time Republika Srpska’s leading politicians have loyally supported the side of Serbia rather than their own state. This loyalty is now being rewarded by the defence lawyers transferring responsibility for what happened from Serbia to Republika Srpska. Although this was not, nor could be, the intention of the Court, all the crimes from which Serbia has been freed have now been objectively ascribed to Republika Srpska.’

This judgement shows indisputably that Republika Srpska is a formation based on genocide. Srebrenica’s bloody story is built into its foundation. What kind of future can this Serb entity have in view of its genocidal origin? Will the Bosniaks ask for a re-examination of this entity’s existence? And, if they did, would the international community agree to its disappearance, and by extension to Serbia’s punishment? How do the international planners envisage the continued co-existence of criminals and their victims, victims whom they - what insolence! - keep advising to forget, for the sake of this co-existence? For how long? Until the next genocide?

The international community, which is the main actor here, has promptly welcomed the ICJ’s judgement. The decisions suits it fine, because at the time when genocide was committed, Srebrenica was under UN protection. It all fits nicely: neither those who have committed the crime of genocide; nor those who knew - or should have known - that it would take place, but did nothing to prevent it; nor those who were guarding the UN-protected area are deemed responsible for the crime. It is as if the crime had never happened. It is as if they are telling us that it was just a bad dream that we should do well to forget, and which should never be spoken about.

The international community appears to have expected this kind of judgement. At the very least it had hoped and wished for it. I keep asking myself whether the judgement that no one is responsible for the crime committed in Bosnia-Herzegovina has anything to do with the fact that the victims were Muslims, living surrounded by Christians. Would the judgement have been different if it had been the other way round?

According to Professor Ivo Josipović of the University of Zagreb, the Court was guided by a very conservative interpretation of the International Convention on Prevention and Punishment of the Crime of Genocide. In absolving Serbia (or Serbia and Montenegro) from having committed genocide, the Court took the view that only direct participation in the planning, preparation and execution of genocide - something that it is always difficult to prove - provides relevant evidence for finding a state guilty of genocide. The Court’s verdict, in his view, represents a step back in comparison with the practice of the International Court for the Former Yugoslavia (ICTY) at The Hague, which on several occasions has recognised and established the doctrine of proxy action: action by way of agents who were trained, and logistically and otherwise aided, by the central state. It is here, in his view, that the decision of the International Court of Justice is most open to criticism.

The Court has asked Serbia to deliver Ratko Mladić, charged with genocide, to the ICTY without delay. This is nothing but wishful thinking. How is it possible to expect Vojislav Koštunica and company to deliver their hero to The Hague, given that Koštunica himself stated immediately after the genocide in Srebrenica (as reported in Naša Borba, Belgrade, 13 July 1995) that it had been a defensive action on the part of the Republika Srpska army? I mention Koštunica in particular here, not just because he is president of Serbia, but also because this view of the genocide at Srebrenica reflects the view of the majority of his Serbian co-citizens.

Crime pays, the victims will say. The greater the crime, the more it pays. The greatest crime of all, the crime of genocide, is accordingly the most profitable.

Translated from a longer text by a distinguished Montenegrin lawyer,

Podgorica, 1 March 2007

III

The ICJ’s shocking verdict has rightly astonished Croatia and even more Bosnia-Herzegovina. The judgment is judicially problematic, politically dangerous, morally unacceptable. One can consider it a rotten compromise. The crime in Srebrenica is proclaimed genocide. But this qualification is limited solely to the Srebrenica enclave in July 2005. The Court found no genocide anywhere else. Serbia is freed of the responsibility for actively participating in the Srebrenica massacre. It is judged to have been indirectly involved only because it did not prevent the genocide or punish its perpetrators.

The judgment is perceived first of all as dishonest and unjust, which implies further erosion of trust in international justice and institutions. The Bosniaks can rightly take it as a continuation of the world’s lack of interest in their ordeal. The ICTY’s charge against Milošević displayed greater respect for the facts of the recent past. The ICJ judgement will strengthen the great existing reserve towards the international community. Mainly because of its brutal disregard for the key historical facts. If the ICJ does not see Belgrade’s active involvement in the war in Bosnia-Herzegovina, then Croatia’s charge against Serbia too is bound to fail. Although Belgrade’s link with the destruction of Vukovar would be more easily proved, that genocide was committed would be harder to prove.

Secondly, the judgement is damaging because it will make it harder to pursue war criminals in the post-Yugoslav states. Justice has become so relative, that nothing has been left of it. Following the de facto amnesty of Milošević’s Belgrade, point of departure for the tanks, the war and the crimes, the ICTY might as well close its doors.

Thirdly, the judgment is dangerous because it brings new tensions to a part of the Balkans that is not yet stabilised. Although the United States and Germany, speaking in the EU’s name, have been quick to proclaim the judgment as a new opportunity for final reconciliation and normalisation of the whole region, it in fact adds salt to wounds that have not yet healed. This is true especially for Bosnia-Herzegovina, where instead of calming the situation it will cause new frustrations. A lot will depend on how Serbia now behaves. It will make a big mistake if it responds in a triumphalist manner to the verdict, and interprets it as a confirmation of innocence. The judgment has given it a possibility to distance itself from the policies and crimes of the Milošević regime, to express contrition and offer satisfaction. Only in this way will it be able to diminish the nefarious effects of the verdict of the International Court of Justice, which in this case has behaved as an architect of injustice.

Jelena Lovrić, Globus (Zagreb), 2 March 2007

IV

The lawyers representing Bosnia-Herzegovina should be congratulated, because they have achieved the impossible. They managed to turn round an initially hopeless case and prove a number of things: for example, that genocide was committed at Srebrenica. International courts do not like bringing in ‘big’ verdicts. The fact that the judges have declared that Serbia is passively responsible for genocide is a significant advance.

It would have been surprising if they had found Serbia actively responsible for the genocide in Bosnia-Herzegovina. In this way the judges have found Serbia responsible for not preventing genocide in Bosnia-Herzegovina. They could not have done more, realistically speaking. No state has ever been found responsible for genocide, so that this is in itself a precedent in international law. It may be a small step, but it is a step forward. International institutions represent international policy, which twelve years ago permitted all this to happen. It would have been naive to think that they would behave differently today.

Mark Drumble of the University of Washington, Globus (Zagreb), 2 March 2007

V

On 12 May 1992, at a meeting of ‘The assembly of the Serb people of Bosnia-Herzegovina’, Radovan Karadžić proclaimed six strategic aims to be achieved. These were: 1. separation of the Serb people from the other two national communities at the level of the state; 2. establishment of a corridor between Semberija and Krajina; 3. establishment of a corridor in the Drina valley, i.e. eliminating the Drina as the border between two Serb states; 4. establishment of a border on the rivers Una and Neretva; 5. division of Sarajevo into a Serb and Muslim part, and establishment of an effective state government in both; 6. securing for Republika Srpska an exit to the Adriatic Sea. [Ratko] Mladić voiced his support for these aims and encouraged others to do the same, but he also found it necessary to remind the assembled civilians that it would be impossible to separate Serbs from non-Serbs through voluntary departure of the latter from the given territory, so that any attempt in that direction would involve committing genocide.

It did indeed prove impossible to get the non-Serbs voluntarily to leave Zvornik, Višegrad, Foča, Bijeljina, Bratunac, Srebrenica, the whole of the Drina valley, Prijedor, Bosanski Novi, Sanski Most, Ljubija and the whole of the Sana valley, Derventa. Plehane, Brčko, Š amac and the whole of the Sava valley, Banja Luka, Trebinje, Kupres, Jajce, Kotor Varoš, etc. etc. It was necessary to undertake other measures, those which the general himself called genocide. This was known to the ICJ, and it is difficult to understand why it limited genocide solely to Srebrenica.

The Court has freed Serbia from the charge of genocide, and identified individuals from the military and civilian leadership of Republika Srpska as perpetrators. So it is hard to understand the euphoria coming from Banja Luka regarding the verdict. The RS leaders insist that the verdict has proved that Republika Srpska, born in January 1992, is ‘older than the genocide’ committed in 1995; but the ICJ clearly identifies them as the legitimate heirs of those mass war crimes, as well as of genocide, however territorially restricted.

Ivan Lovrenović, Feral Tribune (Split), 2 March 2007

VI

Feral Tribune: What is your view of the verdict according to which Serbia is not responsible for the genocide in Bosnia?

Srđa Popović: I am happy that the attempt to proclaim the Court not competent failed, and that the verdict establishes that genocide took place, which was the most contested issue in both Serbia and Republika Srpska. The question of who it was who ordered and participated in the genocide was resolved by the Court’s finding there was no proof that Serbia had effective control over the army of Republika Srpska.

Do you think this was a reasonable judgement?

It is most likely that the Court thoroughly investigated the evidence and found that, on the basis of the materials submitted, there was insufficient proof for such a grave verdict. At the same time, it said that genocide was committed by the army of Republika Srpska, so I do not understand why they are celebrating in RS. It is one of the most solid arguments in favour of the Bosniak thesis that RS is a genocidal construction. I am convinced that on the basis of this judgement a big battle will take place for reducing the authority of that entity. In my own view the genocide at Srebrenica was committed by an army paid by Slobodan Milošević; but for lawyers what is not in the documents does not exist in real life. The Court made an obvious factual mistake in stating that the Scorpions were a paramilitary formation, when in fact they were a Serbian police unit. They made a mistake there, but I do not know if this would have changed their verdict. In any case, the judgment has proclaimed Serbia guilty of violating the Convention on the Prevention and Punishment of Genocide, which is no small thing.

What was the reaction of the Serbian government? President Boris Tadić has made a measured statement.

He proposed that parliament should adopt a declaration condemning the genocide at Srebrenica, but that idea met with a chilly reception. The Serbian parties, and in particular the Democratic Party of Serbia, mutter about condemning all crime, but that is simply the law of the land. When it is a matter of taking some concrete step, nothing is done.

Srđa Popović interviewed by Vladimir Matijanić, Feral Tribune (Split), 2 March 2007

VII

A very private genocide

Mirko Filipović

While the ICJ judges in The Hague were putting the finishing touches to their appearance before formally issuing their ruling on the role of Serbia and Montenegro in the genocide committed on the soil of Bosnia-Herzegovina, workmen in Banja Luka were finishing off a new monument to the victims of Jasenovac erected in front of the assembly and government building. While in a circle of one hundred kilometres radius drawn around Banja Luka fifteen of the most notorious camps in Republika Srpska slumbered forgotten, Dodik’s administration was preparing a strong statement on RS’s unconditional existence, and the Serb National Movement Izbor [Choice] was tying the last ribbons round parcels containing 50,000 signatures demanding a referendum on RS’s right to separate from Bosnia-Herzegovina. Every one was in fact doing their job: the Court of Justice, Anglo-Saxon customary law, Injustice and Oblivion, but above all the RS political team.

After the president of the International Court of Justice, Judge Rosalyn Higgins, had spent three hours justifying the verdict, the journalists summed up what she had meant: that the genocide committed in Bosnia-Herzegovina had happened only at Srebrenica, and that Serbia had not known that the Bosnian Serbs would commit genocide although it had paid them for it. Serbia is delighted with the verdict, of course, because it has been freed of the responsibility for genocide, and believes that it will be easy to wash off the Court’s finding that it was guilty for not preventing it or punishing the perpetrators with a cheap declaration condemning the Srebrenica crimes. The International Court is also very pleased, because it has succeeded by legal balancing in reaching a final verdict on the greatest crime on earth without having to say who was responsible for it. It made its decision not on the basis of the facts, but on the basis of the available documents. Many accuse the Bosnian legal team for failing to present proper documents; but the director of the Belgrade-based Foundation for Humanitarian Law, Nataša Kandić, insists that all these years the Serbian strategy has been based on hiding documents, which thus remained out of reach of the Bosnian side - though not of the Court if it had so wished. She thinks that Carla del Ponte herself failed to supply the latter with all the documents at her disposal. This may explain why Carla del Ponte declared herself pleased with the verdict.

Only the RS Serbs may find themselves displeased, because the international court has stated that, following the genocide committed against the Jews, the next genocide to occur in Europe took place in Republika Srpska - and that Serbia was not responsible for it. Anybody with a minimal ability to think logically is bound to conclude that they alone and their para-state bear the responsibility, and that those who are responsible should also suffer consequences in proportion to the scale of the crime. The three RS leaders, however, promptly held a press conference at which they resolutely argued the following: that the charge against Serbia had been both illegal and illegitimate, and could not but end in this manner; and that although a ‘horrific crime’ had been committed in Srebrenica, individuals not institutions were responsible for it, individuals who and had already, moreover, been tried and condemned. Dodik next denied, despite the Court’s judgement, that genocide had taken place at Srebrenica; but he also apologised to the families of the victims in the name of the very RS bodies which were not responsible. It was also said that RS’s survival was not in question, since not being an international subject it cannot be the object of an international legal verdict.

This forcing of logic may appear to some as RS’s swan song, but it is more likely that it will survive this temptation too and carry on. It will happily continue to date the emergence of RS from 1992, but also deny all responsibility for any of the crimes committed. Within tens of kilometres from Omarska, Keraterm, Trnopolje, Manjača and five dozen other concentration camps, its leaders and people will pompously denounce the crimes of the Ustashe. In their meticulously ethnically cleansed half of Bosnia-Herzegovina they will boast of the efficiency and trouble-free work of their institutions, as compared to those of the Federation. Every now and then they will threaten secession. They can behave like this because they have no worthy domestic opponents: the Croats do not know what they want, while the Bosniaks do not know how to achieve it.

This comment by a former editor has been translated from the Franciscan monthly Svjetlo riječi (Sarajevo), March 2007

VIII

The ICJ judgment on genocide in Bosnia-Herzegovina

Mirjan Damaška

The verdict of the International Court of Justice on genocide in Bosnia-Herzegovina has excited stormy reactions and bitter controversies. Those unacquainted with the Byzantine complexity of international law find it difficult to grasp the actual meaning of this compromise decision. Let us therefore first examine what this Court specialising in disputes between states has established by its judgement.

Although Bosnia sought to prove genocide in the string of inhumane acts committed against Bosniaks during the war in Bosnia, the judges concluded that only the Srebrenica massacre was a genocide. They did not ascribe this crime to Milošević’s Serbia, however, but to Republika Srpska. They did not even find Serbia to have been an accomplice, i.e. to have collaborated with the latter. They established only that Serbia had transgressed international law by not preventing the genocide, and by failing to punish those perpetrators who were within its reach. The judges consequently rejected the Bosnian demand for damages for the victims of this gravest crime in Europe since the end of World War II. In the judges’ view, their verdict that Serbia had violated the Convention on Genocide, which obliges states to prevent genocide and to punish its perpetrators, is adequate satisfaction for Bosnia. Before turning to possible criticisms of this verdict, let us examine it in the best possible light.

In the first instance, Serbia’s victory in this process is dubious from a moral point of view, since it clearly follows from the verdict that the government of Milošević’s Serbia was involved in serious crimes against international law. Although those crimes were outside the competence of the Court, the judges had to refer to them, because they formed the basis of Bosnia’s attempt to prove genocidal intent. Only people devoid of moral sensibility could glory in a judgment that stamps a state with crimes against humanity. The other relevant consideration is that it is indeed difficult to establish genocide in the legal sense. It is particularly difficult to prove that mass murders and other inhumane acts were committed with the intention of destroying a specific, or a protected, ethnic group. Those charged with such intent can easily defend themselves on the grounds that their intention was to commit the milder crime of ethnic cleansing, or the illegal realisation of a military aim. It is not easy to counter such a defence in the course of the proceedings. The UN commission for Darfur has likewise refused to characterise the mass crimes committed there as genocide. So in which sense is the decision of the International Court nevertheless problematic?

One problem is the Court’s legal interpretation that inaction does not aid the execution of a crime. This disagrees with other verdicts issued by international criminal courts, and with many individual national laws. If the Serbian government knew about the massacre in Srebrenica, its failure to use its influence on Republika Srpska to avert the tragedy should have been judged by the Court as being accessory to (aiding) the crime. It is difficult indeed to imagine that Serbia did not know about the events in Srebrenica, given that the mass murders there went on for nearly a week and were publicised by the world media. Instead of establishing that the Serbian government knew what was happening, and that this knowledge was accompanied by indifference, the Court accepted that the government was aware only of the possibility that the massacre might occur. This led the majority of the judges to reach the somewhat hasty conclusion that Serbia was responsible for failing to prevent genocide, but not for aiding its execution.

The second problem that will long continue to be a subject of dispute relates to the presentation of evidence. The Court refused to compensate for the lack of direct evidence of Milošević’s genocidal policy by taking into account, as an indication that such a policy did exist, the totality of the inhumane acts committed against the Bosniaks, in a whole range of incidents in which Serbia’s involvement was more evident. Particularly problematic is the circumstance that the Court accepted in favour of the non-existence of genocide the fact that the International War Crimes Court in The Hague (ICTY), thanks to a deal with some of the accused, withdrew the charge of genocide. It is questionable to accept such deals as proof of the non-existence of genocide for the very fact that The Hague prosecution prefers to avoid lengthy and expensive court hearings, aiming instead for expeditious sentences for crimes against humanity or war crimes. It now turns out that Milošević’s Serbia did not conduct a genocidal policy towards Bosnia; and, since the ICTY was unable to conclude the proceedings against Milošević, this verdict acquires a special significance. According to its logic, Milošević would have had to be found innocent on the charge of genocide. It turns out, somewhat paradoxically, that the genocide against the Bosniaks was committed by a component part of Bosnia-Herzegovina - something that could or should have reflected upon its legitimacy.

As for the consequence of this verdict for Croatia’s charge against Serbia, opinions differ. Croatia should find it easier to prove Serbia’s direct involvement in the massacre at Vukovar and some other crimes than Bosnia found it to prove Serbia’s involvement in the Srebrenica massacre. This is true not only for the role of the JNA, but also for the role played by the Scorpions in both tragic events. The great problem for Croatia is that the ICJ judges have refused to ascribe the meaning of genocide to incidents in the Bosnian accusation that are very similar to the incidents on which the Croatian charge rests. The chances that the Court could equate Vukovar with Srebrenica are therefore not great. Can one realistically expect that the ICJ would establish a policy of genocide in the Croatian case after failing to do so in the Bosnian case? The unfavourable prospects for the Croatian case do not mean, however, that it should be withdrawn. Of the many factors that should be taken into account in regard to a possible decision, it is enough to single out just one. It should be borne in mind that the ICJ can reject Croatia’s accusation of genocide only by first qualifying the events described in the accusation as serious crimes against humanity. Although that verdict would not result in reparations, or in meeting the costs of the trial, it should not be disregarded either. Court proceedings do not know Pyrrhic victories alone, but also advantageous defeats.

The author is Sterling Professor of Law at the Yale Law School. This comment has been translated from Nacional (Zagreb),12 March 2007

IX

The ICJ verdict - a Serbian view

Milenko Marković

Few people expected the Court to declare that Serbia does not bear responsibility for the genocide in Bosnia-Herzegovina. Even the defence side feared that the verdict was likely to be more damaging for it than responsibility for failing to prevent genocide. Public opinion in Serbia believes that justice has basically been done, although some extremists see even this watered down judgement as reflecting a residual bias against Serbia. In Bosnia-Herzegovina, outside Republika Srpska, the feeling is this is a betrayal of justice. Setting aside the controversial aspects of the ruling and its accompanying opinions, we are left to confront our own responsibility. Can this legal decision help to make us feel that our conscience is clear? Can we say that this particular verdict has freed us from the suspicion that we were the main, even if not the sole, culprits in the Balkan massacre? And does it aid the historical reconciliation of the nations involved in the war? It is not at all clear whether the verdict helps or impedes the process of catharsis in Serbia.

Here are some reasons: the command centre in Belgrade; the transformation of parts of the JNA into the Army of Republika Srpska; Serbia’s own paramilitary formations working hand in glove with that army; the supplying of that army by Milošević’s regime (salaries, arms, food, etc); numerous psychologically destroyed individuals; the gravity of the acts committed in close liaison with Belgrade and Pale. This is why the argument that the Serbian regime was not involved in the production of the catastrophic consequences does not sound convincing.

Intention to commit genocide

It has been said that the Court could not establish the actual intention to commit genocide. But if people of a certain nationality are being expelled from a given territory, if their cultural and sacral objects are being destroyed, if their graveyards are being eradicated, if they have nothing to return to - then does this not infer an intention that is sufficiently evident even without written documents? Which aggressor, after all, makes public his intentions? Aggressors justify themselves by referring to the demands of peace and humanity. During the Yugoslav wars the aggressors used the slogans of ‘war for the sake of peace’, ‘defence of Serb homes’ and ‘Serbia is wherever there are Serb graves’ - all this embellished with familiar chauvinism along the lines of: ‘we cannot live together, so we must separate’, and so on and so forth.

Those who insist that the massacre in Srebrenica would not have been possible without outside support, in this case the support of the Serbian state, are right. If Serbia is responsible for failing to prevent genocide, does this not mean that the crime could not have happened without its at least tacit support? Without wishing to question the competence of the Court, is it not strange that the fact that the officers of the Army of Republika Srpska were on the Serbian state’s payroll was insufficient proof that they could not have acted without the agreement of those who were paying them? Even if other evidence was unavailable, is this fact not enough in itself to make the judges question the seeming innocence of the Milošević regime?

If genocide and the genocidal intent of a regime were difficult to prove, this does not mean that they did not exist. For how is it possible for something so evident to have happened, something that hurt millions of people, and still be legally proclaimed non-existent? Will this not encourage and teach future aggressors in their criminal intentions? The judgment contains other confusing illogicalities, such as for example: Is Serbia responsible for what happened in another state, in this case Bosnia-Herzegovina, in the same way that it was responsible for what happened on its own territory? How is it possible that Serbia is found responsible only morally and politically for the crime in Srebrenica, while the case of Kosovo led to its bombardment and the alteration of its existing recognised borders?

Though I am not a lawyer, I wonder whether another verdict was not possible, one that would have contained a greater degree of responsibility on the part of Slobodan Milošević’s regime, hence also a greater degree of moral satisfaction for the victims of the Srebrenica genocide, but which would also not have implied the Serbian people’s collective responsibility or Serbia’s obligation to pay reparations. This is because the Serbian people showed what they thought of Milošević’s regime in the elections of 5 October 2000. Radoslav Stojanović [leader of the Serbian defence team] was right when he said that the Serbian people had no intention to destroy the Bosniak people. But Stojanović and all of us know full well that Milošević’s regime had the intention to extend Serbia’s state borders, and that this plan included removal of the non-Serb population from parts of Bosnia-Herzegovina and Croatia.

Historical reconciliation

How much will the verdict help the interested parties to arrive at a common view regarding the nature of the wars in Bosnia-Herzegovina, Croatia and Kosovo? This is a crucial question for the prospects of historical reconciliation among the nations of former Yugoslavia. Judging by the reactions in these countries, the verdict has fallen far short of any such possibility. Not only will it not aid historical reconciliation, but on the contrary, which is the saddest thing of all, it will only encourage nationalists on all sides.

A declaration by the Serbian assembly, as proposed by President Tadić, that would refer at least to what was said about Serbia in the Court’s verdict, is probably the minimum of what Serbia must do. The verdict has given Serbia an unexpected opportunity to begin to free itself of the heavy burden of the crimes committed in its name. Judging by the statements made by some party leaders, it will be difficult to pass such a declaration. Whenever it is necessary to condemn Serb crimes committed in Bosnia-Herzegovina, Croatia or Kosovo, we find it impossible to do so without linking them to crimes committed by others. Are we ever going to be able to admit to and condemn our own crimes, while leaving the crimes of others to their own consciences?

The author is president of the Belgrade-based Alliance of Anti-Fascists. His comment has been translated from Oslobođenje (Sarajevo), 21 March 2007