I've spent some time reading the judgement of the International Court of Justice on the case of Bosnia and Herzegovina v. Serbia and Montenegro (the press release is here and the full judgement, with disssenting opinion, is here). I am no lawyer, but it does appear to me to miss the significance of this judgement to say, as one writer does in The Telegraph, that: "Even by the snail-pace standards of international justice, 14 years is a long time for a case that however worthy had little or no chance of succeeding in its main aim - proving genocide." Having lately commented on the outstanding reporting done during the Balkan Wars by The Guardian - particularly, but not only, by its correspondent Ed Vulliamy - I'll direct you to the newspaper's first leader today. It is a perceptive assessment under an apt title, "Serbia called to account":
But for all [its] flaws, the ruling of the international court of justice was significant. First, it confirmed that a genocide had taken place in Srebrenica. Second, the judges found by a convincing majority (13-2) that Serbia had the power to foresee and prevent the slaughter, and had failed to use it. Third, they found that Serbia failed to comply with its obligations to punish those who carried out the genocide, either by putting the generals on trial themselves or by handing them over to the international criminal tribunal for the former Yugoslavia. Further, Serbia is continuing to fail to live up to its international responsibilities by not handing over the military architect of the massacre, Ratko Mladic, who has long been the most wanted man in Europe. The 64-year-old general has evaded capture for 12 years, mostly with the help of his former troops and elements of the security services who see him as a national hero.
A finding of genocide is significant in itself given the high burden of proof that the Court explicitly required. In paragraph 190 of its judgement, the Court considers at length the legal content of the phrase "ethnic cleansing", and cautions (emphasis in original):
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: the intent that characterizes genocide is “to destroy, in whole or in part” a particular group, and deportation or displacement of the members of a group, even if effected by force, is not necessarily equivalent to destruction of that group, nor is such destruction an automatic consequence of the displacement. This is not to say that acts described as “ethnic cleansing” may never constitute genocide, if they are such as to be characterized as, for example, “deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part”, contrary to Article II, paragraph (c), of the [Genocide] Convention, provided such action is carried out with the necessary specific intent (dolus specialis), that is to say with a view to the destruction of the group, as distinct from its removal from the region.
In summary the Court distinguishes between "physical destruction and mere dissolution of a group". The first is genocide; the second is not sufficient to count as genocide. The crucial phrase, which occurs throughout the judgement, is "specific intent". The massacre at Srebrenica committed by Bosnian Serb forces under the command of General Ratko Mladic was a genocidal act. The burden of evidence in cases of sovereign authority is very high indeed. The Court stresses (paragraph 209, emphasis added) that "claims against a State involving charges of exceptional gravity must be proved by evidence that is fully conclusive". It is unsurprising - in this respect at least, The Telegraph's commentator is right - that the charge of genocide levelled against Serbia should have been rejected, for the evidence is not fully conclusive. It is - I put it mildly, but accurately - formidably circumstantial and suggestive.
The war aims of the Bosnian Serbs were formally to link enormous tracts of Bosnia to link those areas where there was a Serb majority. The intent - an aggressive and genocidal imperialism - was to grab more than two-thirds of the territory of Bosnia, whereas Serbs made up only one-third of the population. To accomplish this, Mladic and his comrades attacked Tuzla, Srebrenica and other areas of Muslim concentration, with - as Misha Glenny puts it in The Balkans: 1804-1999, 1999, p. 644, "logistical support from the army in Serbia, and political support from Milosevic".
This is completely correct, and even understated. A force controlled by Serbia - and specifically by the late Slobodan Milosevic - put Mladic in command of the Second Military District of the Yugoslav People's Army, which in turn provided the nucleus of the Bosnian Serb army that committed an act of genocide at Srebrenica. There is a direct link between Milosevic and the agency of genocide; there is not, by the Court's high standards, fully conclusive proof of specific intent on the part of Serbia, and for that reason the judgement is surely correct. Serbian control of Mladic's forces was not, at the time of the Srebrenica massacre, sufficiently direct and with evidence of specific intent, to sustain that charge. What there is, to the same standards set by the Court, is a finding (paragraph 471) that Serbia "violated the obligation to prevent genocide, under the Convention on the Prevention and Punishment of the Crime of Genocide, in respect of the genocide that occurred in Srebrenica in July 1995".
Legal judgement is not, fortunately, historical judgement. This unprecedented action against Serbia collectively was never likely to succeed, nor ought it to have done. Against individual perpetrators, the charge of genocide with "specific intent" is more reasonably levelled, and more easily done, as a result of this judgement. The direct evidence against Mladic is established. The circumstantial evidence against the late Slobodan Milosevic, as will never now be brought in court but may be judged by historians, is strong, if not fully conclusive on grounds of specific intent. Fully conclusive proof of specific intent to commit genocide (a postwar concept) would have been technically unavailable to the prosecutors at the Nuremberg trials likewise. As the purveyors of the falsehood known as Holocaust denial invariably point out for their own purposes, there is no known documentary evidence of a specific order from Hitler to murder the Jews. The weight of historical evidence makes it possible to argue this course only by means of systematic fakery. In a letter to the Readers' Editor of The Guardian, concerning another matter, in 2005, David Aaronovitch, Francis Wheen and I pointed to the similarity between that "school" of thought and those who deny the facts of Srebrenica:
There is ... a legitimate parallel to be drawn with what has come to be known as “Holocaust Denial”. Most of those who may justly described as “deniers” are, of course, happy to acknowledge that crimes were committed against the Jews. Terrible crimes, even. What they deny, however, is that these were crimes that were out of the ordinary for what was a total war. The numbers were fewer than claimed, the physical evidence is deficient, the photographic evidence is unreliable, the deliberation less overt, the action more of a reaction to wartime exigencies, the comparisons with Allied “atrocities” (e.g. the bombing of Dresden or the attack on Hiroshima) legitimate, the Jews somehow complicit.
What the judgement of the ICJ yesterday points to is the fatuity of the notions propounded by such people. Their names - Ed Herman, Diana Johnstone, the various members of the absurdly named "Srebrenica Research Group" - will probably not be well known to many of my readers. They have been aptly portrayed by the Balkan historian Marko Attila Hoare:
Not a single respectable work of scholarship has been produced by any member of this political category in the West, though they have produced an enormous quantity of what can most charitably be described as extended political tracts, based entirely on English-language sources; indeed, largely on other political tracts by other Balkan genocide deniers. Scholarly laziness, it should be said, is not a charge that can be levelled against actual Serb nationalist historians, many of whom have written excellent books based on serious research; though I disagree with their political views, I respect their scholarship. By contrast, the ‘anti-war’ people in the West write propaganda rather than history about the Balkans; necessarily so, since they believe Yugoslavia was destroyed by a Western or German imperialist conspiracy, and this is not a viewpoint that anyone who actually does research on the subject can sustain. The average MPhil student here at Cambridge would be embarrassed to produce the sort of rubbish churned out by Michael Parenti, Diane Johnstone, Kate Hudson and other ill-informed genocide deniers, whose sole purpose is to confirm other lefties in their anti-Western prejudices. Not one of these people has visited an archive, or consulted the Serbo-Croat-language press, or examined any former-Yugoslav historical documents, or carried out a series of extended interviews with participants in the conflict.
The crass and morally repugnant propaganda of these people ought to be read in conjunction with the ICJ conclusions. The more serious question is what policy conclusions, if any, should be inferred from the legal judgement. This is my view.
There is a plausible and sophisticated case - one that is particularly prevalent among American conservatives - that the notion of international law disregards the importance of state sovereignty. One articulate proponent of this view is Jeremy Rabkin, in his book Law Without Nations?: Why Constitutional Government Requires Sovereign States, 2005. It is a powerful criticism that international law presupposes a sovereign body with the means of implementing that law, yet no such body exists. Other conservative writers have inferred from this that international law is an inevitably politicised notion, which will exacerbate rather than resolve conflict. You can see an argument along these lines in the Bosnia v. Serbia case from the legal scholar Eric Posner here:
Nations should encourage the Serbs and Bosnians to overcome their differences, and for this purpose the traditional carrots and sticks of international relations-trade, aid, diplomatic pressure-can help. But they should not place their confidence in the ICJ. Indeed, if Bosnia were to drop the case against Serbia, this might contribute more to peace and reconciliation than its legal resolution would.
Again, I stress I have no legal training. But from a political standpoint I believe this is an unwarranted inference from the fact that international law, unlike domestic law, has no sovereign enforcer. The creation of a body of law dealing with the affairs of state seems to me a qualified advance for civilisation, even when judged on strictly pragmatic grounds. One outcome of the judgement that bears stressing is that, as The Guardian puts it, "Serbia is continuing to fail to live up to its international responsibilities by not handing over the military architect of the massacre, Ratko Mladic, who has long been the most wanted man in Europe". In a short piece in The Times last year, I commented:
The Hague tribunal secured the first ever genocide conviction [since amended to merely aiding and abetting genocide], that of General Radislav Krstic. By calling “ethnic cleansing” what it really was, the tribunal may have made it more difficult for Western governments to ignore aggressive nationalism. That could only have been accomplished by a juridical route. It is mocked by Mladic’s continued liberty.
Western democracies have a moral obligation to represent those who have no one else to represent them against aggressive regimes. That obligation has been obscured by the impeachable diplomatic and political ineptitude of the Bush administration. It would be a terrible thing if the notion of inviolable state sovereignty were to reassert itself as a result. The Court judgement against Serbia - on which the Serbian President has commented admirably - makes it less likely that that will happen. Progressive and humanitarian values, as opposed to the genocidal atavism whose handiwork the Court considered, will be advanced as a result.