More on the ICJ judgement
I wrote yesterday about the content and beneficial likely consequences of the judgement in the case brought by Bosnia to the International Court of Justice. Conversely, the danger with bringing the claim of genocide against Serbia was that the unlikelihood of success would allow malign elements to draw inferences from the judgement that it cannot support. The Guardian today carries a comment piece that ludicrously maintains:
Slobodan Milosevic was posthumously exonerated on Monday when the international court of justice ruled that Serbia was not responsible for the 1995 massacre at Srebrenica. The former president of Serbia had always argued that neither Yugoslavia nor Serbia had command of the Bosnian Serb army, and this has now been upheld by the world court in The Hague. By implication, Serbia cannot be held responsible for any other war crimes attributed to the Bosnian Serbs.
Where do you start, and which is grosser? The false assertion or the illegitimate inference? The Court judgement says no such thing. It states that (paragraph 434):
[D]uring the period under consideration, the FRY was in a position of influence, over the Bosnian Serbs who devised and implemented the genocide in Srebrenica, unlike that of any of the other States parties to the Genocide Convention owing to the strength of the political, military and financial links between the FRY on the one hand and the Republika Srpska and the VRS on the other, which, though somewhat weaker than in the preceding period, nonetheless remained very close.
The extent of that support during that period was not sufficient to demonstrate specific intent to commit genocide. Consequently that very strong charge, requiring conclusive evidence, was rejected - though with a dissenting opinion by the Vice-President of the Court. To claim this observation as an exoneration of Milosevic, though Serbia was indeed in formal command of Bosnian Serb forces when war crimes other than the genocidal massacre at Srebrenica were committed, is an insult to the intelligence of Guardian readers (and indeed of Guardian journalists, who showed great skill and physical courage in reporting from Bosnia). When I tell you that the author of the piece is one John Laughland, all will fall into place. As David Aaronovitch commented in The Guardian in 2004: "[W]hat we seem to have in Laughland and his associates is a group of right-wing anti-state libertarians and isolationists, suspicious of any foreign entanglements, who have somehow morphed into apologists for the worst regimes and most appalling dictators on the planet."
Meanwhile, Martin Bell emails to say: "I think the Guardian got it right. I always thought it unlikely this unprecedented action would succeed. But it increases the pressure on Serbia to hand over Mladic." The article Martin is referring to is the Guardian leader yesterday, "Serbia called to account". (Lest I be accused of withholding relevant information, I should mention that I used to have an indefatigable correspondent called Branka Josilo-Perry. She would send me, in great bulk, cut-and-pasted material "proving" that Bosnian Muslims had staged the massacre at the Sarajevo marketplace in 1994 as a pretext for US intervention against the democratic socialist government of Slobodan Milosevic. One of her additional claims, so far as I recall, was that the lily-livered Martin Bell of the BBC had fabricated his own shooting in Sarajevo in 1992, presumably for similar ulterior motives.)
Finally, on the principle of juridical questions in relations between states, I quoted in my post yesterday an article by an American legal scholar Eric Posner arguing that "nations should encourage the Serbs and Bosnians to overcome their differences" by traditional diplomacy rather than law. For the reasons I stated, this seems to me quite wrong. There is an important argument, and one often heard among American conservatives, that a supranational legal institution lacks either the sovereignty or the legitimacy to pronounce on relations between states. Posner and a co-author Jack Goldsmith, a Harvard Professor of Law, have written a book on this subject entitled The Limits of International Law (1995), in which they argue also a pragmatic consideration (p. 215):
The democratic hurdles to cosmopolitan action should give pause to those who believe that individuals possess limited cosmopolitan sentiments but who nonetheless ascribe strong cosmopolitan duties to liberal democratic governments. Individuals act through and limit liberal democratic institutions. If there is reason to doubt that individuals lack powerful cosmopolitan motivations, there is reason to believe that this paucity of motivation will be reflected in the output of liberal democratic institutions.
The ICJ has delivered a considered judgement holding Serbia, if not strictly to justice for sins of commission by named parties, then at least to account for sins of omission. That is a limited but distinct advance for improving what Posner and Goldsmith term the output of liberal democratic institutions. It is far too late for Bosnia, but important nonetheless for our capacity to aid the intended victims of future genocidal aggression.
