2007-02-26

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. [...]

--

Unfortunately, he was in the minority.

4 comments:

Bg anon said...

I'm not sure I understand what Andras is saying here. I mean he is saying that the verdict should have been harsher and on which charge?

Is this an excerpt and is there a link?

Is it silly of me to wonder about Al-Khasawneh and the Russian sounding judge to vote the way one might expect?

András said...

There were 16 ICJ judges, from as many countries around the world, who participated in this judgement. There were only two whose opinions on all aspects of the case were consistent and predictable from the start: the two ad-hoc judges nominated by the plaintiffs and the defendants respectively (Mahiou and Kreca). As to the rest of the ICJ judges, nationality and religious background were not always a safe predictor of which way they would vote. For example, even the Russian judge L. Skotnikov, who generally agreed with the Serbian ad hoc judge (Kreca), voted with the majority and against Kreca on two of the counts, ruling that the ICJ:

-- Finds that Serbia has violated its obligations under the Convention on the Prevention and Punishment of the Crime of Genocide by having failed to transfer Ratko Mladić, indicted for genocide and complicity in genocide, for trial by the International Criminal Tribunal for the former Yugoslavia, and thus having failed fully to co-operate with that Tribunal;

-- Decides that Serbia shall immediately take effective steps to ensure full compliance with its obligation under the Convention on the Prevention and Punishment of the Crime of Genocide to punish acts of genocide as defined by Article II of the Convention, or any of the other acts proscribed by Article III of the Convention, and to transfer individuals accused of genocide or any of those other acts for trial by the International Criminal Tribunal for the former Yugoslavia, and to co-operate fully with that Tribunal;

If you're interested in going beyond the boiled-down and distorted versions presented in the media, you can do something about it:

Download and try to read at least key parts of the full text of the ICJ judgement and of the dissenting opinions, which show the reasoning used by the judges in deciding this case. If you do, you'll have done more than most of the politicians or commentators busy "analyzing" a judgement they have not read.

The ICJ's Judgment of 26 February 2007

Dissenting Opinion of Vice-President Al-Khasawneh

Since you asked about my own view of the judgement, basically I agree with the reservations expressed by Eric in the previous posting and with Judge Khasawneh's observations. The finding that a crime occurred but that nobody is guilty of committing it dodges the issue of responsibility; the applicant (BiH) was put at a disadvantage by the Court's insistence on a very narrow interpretation of rules of evidence, in which the destruction or withholding of documentation proved to be an effective strategy, and indirect evidence was not treated as relevant. Read the full text of the judgement (or as much of it as you find interesting) and the dissenting opinion before you make up your mind.

András

davor said...

oprosti što Ti upadam ovako u temu, ali sam htio podijeliti sreću s nekim tko me razumije :))

Ona Folk Revija je otkazana, na oduševljenje svih onih koji te stvari gledaju s gađenjem, a na veliku žalost onih 5000 ljudi koji su kupili karte :))

više o tome:

http://www.jutarnji.hr/zagreb/clanak/art-2007,2,28,folk_revija,64471.jl

best regards,
Davor

Eric Gordy said...

Havala, Davore, vidim da je Catherine on the job:

http://illyriangazette.blogspot.com/2007/02/folk-revija-another-one-bites-dust.html