Guest post: Another response to the ICJ ruling

A view opposed to what I posted below comes by e-mail from friend of East Ethnia (and plaintiffs' witness) Andras Riedlmayer. Here it is, shared with permission:

As you know, a summary of the judgement is posted at:

http://www.icj-cij.org/icjwww/ipresscom/ipress2007/isummary_2007-2_bhy_20070226.htm

There's this bit:

"[...] With respect to the destruction of historical, religious and cultural property, the Court finds that there is conclusive evidence of the deliberate destruction of the historical, cultural and religious heritage of the protected group. However, such destruction does not fall as such within the categories of acts of genocide set out in Article II of the Convention."

In other words: my evidence was found to be convincing, but legally irrelevant. The latter is more or less as expected, though disappointing all the same.

But the logic of the World Court's decision as a whole is troubling. As Le Figaro aptly headlined its report on the ICJ ruling:

"Srebrenica, un génocide sans coupable"

There's some measure of reassurance in the words of the dissenting opinion appended to the ICJ ruling by the Court's vice-president, Judge Al-Khasawneh:

[...] On the merits, Vice-President Al-Khasawneh felt that through a combination of methods and assumptions, uncalled for in law and not suitable to the facts of the case, the Court achieved the extraordinary feat of absolving Serbia of its responsibility for genocide in Bosnia and Herzegovina save for failure to prevent the genocide at Srebrenica, where in any case he thought Serbian responsibility was more actively involved than the mere failure to prevent.

Firstly, since intent is usually elusive and, together with attributability, often carefully concealed, the Court should have sought access to the papers of the "Serbian Defence Council" which would probably have made the Court's task much easier. Refusal of Serbia to divulge documents should have led at least to more liberal recourse to evidence. By insisting on a very high evidentiary "standard" and no shifting of "Burden of proof", the Applicant was put at a huge disadvantage. Secondly, the Court also applied a strict test of effective control: the Nicaragua test, to a different situation where inter alia shared ethnicity and shared purpose to commit international crimes, e.g. ethnic cleansing, require only an overall control test. Thirdly, the Court also refused to infer genocide from a "consistent pattern of conduct" disregarding in this respect a rich and relevant jurisprudence of other courts. Fourthly, the Court failed to appreciate genocide as a complex crime and not a single murder. Therefore, events which when looked at comprehensively gave rise to responsibility of Serbia, were instead seen in a disconnected manner, e.g. the participation of General Mladic in Srebrenica and the role of the "Scorpions". Fifthly, even when there was a clear admission of guilt, e.g. the Serbian Council of Ministers' statement as a reaction to the video showing the execution of Muslim prisoners by the "Scorpions" was dismissed as a political statement though legal weight is attached to such statements in previous Court jurisprudence some of which the Court did not even invoke.

The Vice-President concluded that had the Court tried to see for itself it most probably would have found Serbia responsible either as principal or an accomplice in the genocide in Bosnia. This it could have done without losing the rigor of its reasoning or the high standards of evidence it required. With regard to Srebrenica he was sure that active Serbian involvement was proved to satisfactory to standards in facts and in law. [...]

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Unfortunately, he was in the minority.