The judgment earlier this week of the International Court of Justice (ICJ) concerning Serbia’s involvement in the massacre of Bosnian Muslims at Srebrenica in 1995 should be greeted with considerable ambivalence. On the one hand, the fact that an international tribunal has pronounced on the responsibility of a state in the matter of genocide is an undeniably positive development. On the other hand, however, the court’s decision is one of those judicial pronouncements that attempts to give something to everybody and leave everything as it was. The court was not supposed to hold specific individuals criminally responsible; that is the job of the International Criminal Tribunal for the former Yugoslavia (ICTY). The ICJ, which instead deals with controversies between states, was faced with Bosnia’s claim that Serbia was responsible for the Srebrenica massacre. Although the court ruled that genocide had taken place, it decided that Serbia was not responsible under international law. According to the court, the Bosnian Serb generals who were guilty of this genocide were neither acting as Serbia’s agents nor receiving specific instructions from Belgrade. The genocide could not therefore be imputed to Serbia, even if the Serbian government was paying salaries to General Radko Mladic and his colleagues, as well as providing them with financial and military assistance. Nor was Serbia guilty of complicity, because, though it exercised considerable influence over Mladic and his people, it did not know at the moment when the genocide was taking place that such a crime was being committed. Having “absolved Serbia from the principal crime, the ICJ offered a sort of “consolation prize to Bosnia, affirming that the killings in Srebrenica had the character of genocide – a conclusion already reached by the ICTY. Moreover, according to the ICJ, Serbia violated international law by failing to prevent genocide, because, though it could have thwarted the massacres, it did not, and subsequently did not help the ICTY arrest Mladic (who, notoriously, is still hiding in Serbia). The court’s decision thus attempts to run with the hare and hunt with the hounds. To decide whether Mladic acted on Serbia’s account when he was planning and ordering the Srebrenica massacre, the ICJ demanded proof that Serbian officials sent him specific “instructions to commit this act of genocide. Obviously, such instructions would never be found. Why was it not enough to prove that the Bosnian Serb military leadership was financed and paid by Serbia and that it was tightly connected to Serbia political and military leadership? More importantly, the ICJ’s decision that Serbia is responsible for not having prevented a genocide in which it was not complicit makes little sense. According to the court, Serbia was aware of the very high risk of acts of genocide and did nothing. But Serbia was not complicit, the ICJ argued, because “it has not been proven that the intention of committing the acts of genocide at Srebrenica “had been brought to Belgrade’s attention. This is a puzzling statement at best. The massacre was prepared in detail and took place over the course of six days (between July 13 and 19). Is it plausible that the Serbian authorities remained in the dark while the killing was in progress and reported in the press all over the world? It seems far more reasonable to believe that Serbia’s leaders were informed about what was going on, and that, despite this, Serbia’s military, financial, and political assistance to Mladic was never interrupted. 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. After all, one can also be guilty of complicity in a crime by not stopping it while having both the duty and the power to do so, and when, through one’s inaction, one decisively contributes to the creation of conditions that enable the crime to take place. The survivors of Srebrenica, for whom Bosnia was seeking damage awards, will receive nothing from Serbia. And if former Serbian President Slobodan Milosevic were alive, he would be absolved of the charge of genocide. Antonio Cassese, the first president of the International Criminal Tribunal for the Former Yugoslavia (ICTY) and later the chairperson of the United Nations’ International Commission of Inquiry on Darfur, teaches law at the University of Florence. THE DAILY STAR publishes this commentary in collaboration with Project Syndicate (www.project-syndicate.org).
The ICJ applied too high a burden of proof on Srebrenica
