BOSNIAN GENOCIDE AND 'HALFWAY' CONCLUSIONS OF THE INTERNATIONAL COURT OF JUSTICE
Editorial intro: Although the following research article, written by an Israeli Prof. Yuval Shany, fails to mention that Serbia's darkest pages were in fact hidden / censored from the International Court of Justice (ICJ), it still offers a uniquely interesting perspective about the controversial Bosnian Genocide judgement that shook the very notion of justice. As Antonio Cassese - the first president of the International Criminal Tribunal for the former Yugoslavia (ICTY) - correctly observed: "The fundamental problem with the ICJ's decision is its unrealistically high standard of proof for finding Serbia to have been legally complicit in genocide." Furthermore, in a dissenting opinion of the judgement, Judge Al-Khasawneh stated that "The Court failed to appreciate the definitional complexity of the crime of genocide and to assess the facts before it accordingly." ↓
BOSNIA, SERBIA AND THE POLITICS OF INTERNATIONAL ADJUDICATION
By: Yuval Shany, The International Association of Jewish Lawyers and Jurists
[Yuval Shany is Hersch Lauterpacht Professor of Public International Law at the Law Faculty of the Hebrew University of Jerusalem. The author thanks Mr. Eran Sthoeger for providing him with excellent research assistance.]
The judgment of the International Court of Justice (hereinafter: ICJ) in the Case Concerning the Application of the Convention on the Prevention and Punishment of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro) (hereinafter: Bosnian Genocide), issued on 26 February 2007,(1) has become the source of considerable controversy. Whereas some commentators have viewed it as one of the most important decisions of the court in recent memory,(2) others have disparagingly labeled it as one of the court’s worst ever blunders.(3)
This difference of opinion can perhaps be attributed, in part, to the mixed nature of the outcome – while it was the first ICJ judgment ever to pronounce that genocide had been committed, it exonerated Serbia from direct responsibility for the genocide in Srebrenica (holding, instead, that it ‘merely’ failed to prevent genocide). Some commentators were impressed with the ‘half full’ glass – its innovative interpretation of the substantive provisions of the Genocide Convention,(4) whereas others pointed at the ‘half empty’ part – the timid stance it took towards actually assigning state responsibility for genocide.
This article discusses some of the most significant ‘halfway’ conclusions reached by the ICJ in Bosnian Genocide and offers a possible explanation for the court’s proclivity for mixed outcomes – the tendency of the ICJ to try to partly satisfy all parties to the case before it. Although international judges often deny that they resort to such calculations, I have little doubt that considerations relating to the acceptability of the judgment are factored into the judicial process. Moreover, from a normative perspective, such considerations probably represent under current international conditions a ‘lesser evil’: in a world in which international courts do not always enjoy compulsory jurisdiction and almost never enjoy significant enforcement capabilities, some catering to the interests and sensitivities of the litigating states may be unavoidable. Still, acknowledging the inevitability of ‘judicial politics’ does not solve the serious problems associated with the practice: strategic considerations may interfere with the adequate fulfillment of judicial functions by international courts; moreover, engaging in ‘judicial politics’ may adversely affect the perceived legitimacy of judicial institutions. As in many other areas of law and politics, some form of balancing between competing policy considerations and interests is warranted.
This article comprises three segments: Part one describes the main issues presented in Bosnian Genocide and analyzes some of the ‘half-way’ positions taken by the court on them. Significantly, I argue that the controversial nature of some of the court’s key holdings could, perhaps, be best explained as a conscious attempt to preserve a delicate balance between the litigation interests of the two states involved in the case. Part two introduces some general observations on the inclination of international courts to strive for a balance between the litigation interests of the disputing parties and part three concludes.
Part one: striking the balance
There is little question that Bosnian Genocide represented unique challenges for the ICJ. It was the first ever contentious case brought to the court on the basis of the Genocide Convention;(5) it raised complicated jurisdictional and factual issues; and it required the court to elucidate the relations between its work and that of another international court – the International Criminal Tribunal for the Former Yugoslavia (hereinafter: ICTY) – which had reviewed the same events and pronounced copious factual and legal conclusions on them. Specifically, the ICJ had to address three principal questions:
JURISDICTION: Could Bosnia have brought the case against Serbia (at the time, Yugoslavia) to the court in 1993, notwithstanding the uncertain status of membership of the latter state in the UN Charter and the ICJ Statue appended thereto (which is the basis of the court’s jurisdiction)? This question received added significance following the 2004 judgment of the ICJ in the NATO Bombing cases,(6) where it was held that Yugoslavia was not a UN member throughout the 1990s, and therefore could not bring a case to the court against several NATO member states in connection with the 1999 NATO bombing campaign against Yugoslavia.
SCOPE OF GENOCIDE: Did genocide take place in Bosnia, and if so, what specific atrocities constituted genocide? An associated question was what weight, if any, should the court assign to the factual and legal conclusions of the ICTY on the nature of the events that took place in Bosnia.
RESPONSIBILITY OF SERBIA: If genocide did take place, did Serbia carry direct or indirect legal responsibility for its commission? A complicating factor was the need to reconcile inconsistent decisions of the ICJ in Nicaragua (7) and the ICTY in Tadic (8) on the standard for attributing crimes by non-state militias to states (in this case, whether Serbia bore responsibility for crimes perpetrated by Bosnian-Serb militias).
The court decided these three questions as follows:
JURISDICTION: The court accepted jurisdiction over the case through reliance on its earlier 1996 decision,(9) which rejected Yugoslavia’s preliminary objections to its jurisdiction. The ICJ determined that its 1996 judgment on jurisdiction was final (and hence constituted res judicata) and the court was unable to revisit it.(10) This led to a rather strange outcome: While Serbia was deemed not to be a state party to the ICJ Statute for the purpose of bringing cases to the court as an applicant in the NATO Bombing case, it was estopped from contesting its membership in the ICJ Statute during the same period in Bosnian Genocide, where it was the respondent party.(11)
SCOPE OF GENOCIDE: In its judgment, the ICJ adopted a narrow interpretation of what constitutes genocide, reversing, in effect, some international authorities that had equated ethnic cleansing with genocide.(12) The ICJ held: “Neither the intent, as a matter of policy, to render an area ‘ethnically homogeneous’, nor the operations that may be carried out to implement such policy, can as such be designated as genocide.”(13) Applying this standard, the court held that all incidents of killings, sexual violence, imposition of inhumane living conditions, deportations, harm to cultural property and other crimes committed by the Bosnian-Serbs did not meet, separately or cumulatively, the definition of genocide as they lacked a showing of special intent (dolus specialis) to destroy the protected group – the only exception being the massacre in Srebrenica.(14)
RESPONSIBILITY OF SERBIA: The court rejected the ‘overall control’ standard for attributing acts of irregular militias to the state backing their activities that the ICTY laid down in Tadic,(15) and re-affirmed the earlier standard of attribution adopted by the ICJ in Nicaragua – the ‘effective control’ standard.(16) Applying this latter standard, it held that ‘[t]he Applicant has not proved that instructions were issued by the federal authorities in Belgrade, or by any other organ of the Former Republic of Yugoslavia, to commit the massacres.’(17) The court further held that it had not been proven that the authorities in Belgrade knew of the genocidal intent of the Bosnian- Serb irregular forces. Hence, they could not meet the definition of accomplices under customary international law.(18)
Concerning Srebrenica, the court held that Serbia should have anticipated the risk of genocide occurring there, and that its failure to apply its restraining influence on the Bosnian-Serb forces violated its obligation to prevent genocide under the Genocide Convention (the court held that this obligation also applies to events taking place outside the state party’s territory).(19) The court further held that by failing to arrest and surrender to the ICTY the commander of the Bosnian-Serb militias, General Ratko Mladic, Serbia violated its obligation under the Genocide Convention to punish perpetrators of genocide.(20)
With regard to remedies, the court held that, given the absence of a clear causal link between Serbia’s failure to prevent and punish genocide and the injuries sustained by Bosnian citizens, no order for reparations should be issued. Instead, a declarative statement, asserting violation of the Genocide Convention by Serbia, would be an appropriate remedy under the circumstances.
The controversial nature of the court’s conclusions
The conclusions of the court on the three questions before it are anything but uncontroversial. First, as far as the jurisdictional part of the decision goes, the court has been severely criticized for unjustifiably over-stretching the concept of res judicata to decisions on jurisdiction rendered at an earlier stage of the same proceedings; for over-relying on legal conclusions that were decided at earlier stages without serious consideration; and for narrowly construing its powers of revision.(21) Indeed, seven out of the fifteen judges on the bench expressed varying degrees
of unease with this particular outcome.(22)
Second, as for the actual findings on the commission of genocide, some writers have criticized the court for refusing to look at the ‘bigger picture’ of the events in Bosnia – a picture that seems to suggest that the various atrocious crimes meted out by the Bosnian-Serbs were all part of the same ‘master-plan’ of creating an ethnically homogeneous Serbian state.(23) Others have questioned the court’s readiness to rely on the absence of individual convictions in genocide by the ICTY (except with relation to the massacre in Srebrenica), without properly considering the difference between standards of liability under criminal law and state responsibility (24) or fully appreciating the limited probative value of reduced charges as the result of plea bargains.(25)
Third, with respect to the question of Serbian responsibility, the court’s legal analysis of attribution standards, the reluctance to find Serbia to be an accomplice to genocide, and the decision to refrain from ordering reparations, have all been criticized as excessively conservative.(26) At the same time, the court’s expansive reading of Article 1 of the Genocide Convention as potentially imposing on all states a duty to prevent genocide, even if committed outside their territory, has been noted for its remarkable boldness.(27) Still, some writers have criticized the court for not clarifying whether Article 1 can provide an independent basis for exercising of universal jurisdiction against individual perpetrators of genocide.(28) So, arguably, the court construed broadly the duty to prevent genocide while narrowly construing the duty to punish its perpetrators.
Part two: possible explanations for the judgment’s internal contradictions
How can one explain these contradictions in the judgment, which at times appear to go out of their way to clear Serbia of genocide charges yet at other times represent a clear effort to attribute to it some degree of legal responsibility? One possible explanation for some of the court’s more controversial conclusions relates to its limited fact-finding capabilities:(29) Since the court was not able to engage in extensive fact-finding (independently of the factual findings already reached by the ICTY), it had to develop ‘imaginative’ legal constructions on some of the issues at hand, such as the duty to prevent genocide, as a way to compensate for its inability to reach direct factual conclusions on the issues at the heart of the case (e.g., were the massacres in Bosnia committed with the intent to commit genocide? Did Serbia actually control the Bosnian-Serb militias? Was it aware of their genocidal intent? etc.). In this way, the court was able to impose some degree of responsibility on Serbia despite the absence of a ‘smoking gun’ – established facts that could have tied it directly to the genocide.
Still, limits on fact-finding capabilities cannot fully explain some of the court’s more controversial legal conclusions on jurisdiction, the interpretation of the Genocide Convention and the lack of reparations. In particular, problems in fact-finding cannot satisfactorily account for what appears to be a ‘convulsive’ effort throughout the judgment between controversial legal conclusions, which would seriously compromise the litigation interests of Serbia (e.g., on issues of jurisdiction, duty to prevent and punish) and equally controversial conclusions, which would undermine the Bosnian case (e.g., on definition of genocide, allocation of state responsibility and reparations). Hence, the explanation to the judgment’s internal inconsistencies is, to my mind, different.
Arguably, the specific holdings in Bosnian Genocide can be viewed as an attempt by the court to strike a balance between the litigation interests of the two parties: Serbia lost on jurisdiction, but was not designated a genocidal state; Serbia did not commit genocide or serve as an accomplice in its commission, but was guilty of not preventing genocide; Serbia did not prevent genocide in Srebrenica, but did not violate the Genocide Convention with respect to other atrocities committed in Bosnia (which the court refused to characterize as genocide); and, finally, although Serbia violated the Genocide Convention, it was not required to pay reparations. So, the court accommodated Bosnian litigation interests by pronouncing that genocide took place in Bosnia and that Serbia was involved therein, but, at the same time, accommodated Serbian litigation interests by downplaying Serbia’s involvement in the genocide and minimizing the practical consequences of the judgment.
Significantly, this ‘balancing’ exercise can be identified in many other contentious ICJ cases. For example, in Oil Platforms (30) the United States lost the case but was exempted from paying reparations; in Avena,(31) again the U.S. lost, but U.S. courts were entrusted with wide discretion concerning the implementation of the judgment; in Danube,(32) the Court found both states in violation of their obligations, refused to adopt any practical measures and sent the parties back to the negotiating table; and in boundary delimitation cases a compromise line of demarcation is often resorted to.(33) This has led some commentators to identify in ICJ litigation a trend of ‘conciliarization’ or preference for ‘transactional justice.’(34)
What can international courts hope to achieve, institutionally, when engaging in this sort of balancing act? First, for a court, such as the ICJ, whose jurisdiction over contentious cases depends on party consent, ‘conciliarization of adjudication’ may be an important way to increase the likelihood of acceptance of its jurisdiction. In addition, ‘compromise judgments’ are more likely to be executed by the parties. Hence, the voluntary nature of the judgment enforcement process, and the need for party cooperation at this stage, militate in favor of some degree of ‘conciliarization’ of judgments. This is especially so because compromise outcomes may meet the parties’ preference for distributive justice.(35) Moreover, compromise judgments often serve the practical need of reaching wide agreement among the different judges, and are therefore reflective of a higher degree of judicial consensus and, probably as a result, improved judicial legitimacy.(36)
Finally, engaging in some trade-offs enables courts to accept politically sensitive cases (sometimes, as in Bosnian Genocide, on dubious jurisdictional foundations) while adopting mild conclusions on the merits. In this way, the court remains relevant as a judicial forum that addresses some major issues of the day, without overly upsetting the immediate parties to the case and the larger international community.(37)
So why is the strategy of ‘judicial conciliarization’ not always employed by the ICJ? (For example, this strategy was not selected in NATO Bombing,(38) where the court seems to have done everything within its power to decline jurisdiction over the cases, nor was it adopted in the Wall case,(39) where the opinion produced clear ‘winners’ and ‘losers’). One can speculate that the interests in increasing party-satisfaction and expanding the court’s influence may sometimes conflict with one another; moreover, both policy considerations might succumb, at times, to overriding policy considerations of greater importance. Finally, excessive engagement in ‘conciliarization’ – e.g., in circumstances where the facts and law clearly point in one direction – may ultimately undercut the court’s factfinding and law-applying functions and undermine its institutional legitimacy.
So, for example, in NATO Bombing, the ICJ found itself in the middle of a difficult geopolitical situation and probably sacrificed the litigation interests of Serbia in order to avert collision between the court and the main western powers over the politically explosive doctrine of humanitarian intervention (which is prima facie inconsistent with the prohibition on the use of force in the UN Charter).(40) Similarly, in the Wall case, the party whose level of satisfaction mattered most for the court was the General Assembly, which actually referred the case to the ICJ (and could generate more business for the court on important international issues, were it to feel that the referral was worth its while, i.e., that the court offered a strong legal backing to political processes taking place at the UN). Hence, accommodating Israel’s litigation interests – like Serbia’s interest in NATO Bombing – may have been a consideration of lesser importance in the eyes of the court.
Part three: concluding remarks
It is hard to make sense, from a legal perspective, of some of the key conclusions reached by the ICJ in Bosnian Genocide; nor is it always possible to understand the substantive legal policies they seek to promote. I suggest that the explanation for some of the judgment’s more tenuous legal constructions is found not in the substantive legal policy sphere, but rather in institutional considerations and judicial politics.
Whereas, to my mind, such considerations are, generally speaking, relevant and proper – in fact, inevitable (41) - the degree to which the law can be stretched and bent in order to accommodate the court’s institutional or political considerations is never unlimited. At the end of the day, the court’s primary mission is not to entice more cases, secure compliance or maintain its relevancy. Its primary mission is to uphold the law in cases brought before it.
Regrettably, it appears that these limits were not always preserved in Bosnian Genocide. Whereas some aspects of the judgment can be justified on either substantive or institutional grounds (e.g., standards of attribution or the expansive duty to prevent), in other parts of the judgment (e.g., jurisdiction, reparations) law may have been sacrificed for expediency.
1. Bosnian Genocide is legally established case of genocide
2. Bosnian Genocide judgment upheld by the European Court of Huma Rights
3. Exhibition: Mass graves in Bosnia-Herzegovina
4. Prijedor: Lives from the Bosnian Genocide
5. Remembering Concentration Camps in Bosnia-Herzegovina
6. Serbia's Darkest Pages Hidden from Genocide Court
7. Omarks Concentration Camp: The Auschwitz No One Had Imagined
8. Bosniaks and Croats in Concentration Camps: Jerusalem Post
9. New Evidence of Serbian Involvement in the Bosnian Genocide
10. Dangerous Precedent: ICJ Ruling in Bosnia vs. Serbia case
11. The International Court of Justice: Serbia, Bosnia, and Genocide
12. Srebrenica genocide: 8,372 confirmed victims and counting...
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