Initial response

I am still going to have to give the ICJ decision some study, but my initial take (brace yourselves and prepare to disagree vehemently) is that the judges made a pretty good decision.

Some of the reactions in BiH are unsurprisingly less than delighted. Sulejman Tihić probably spoke for a lot of people when he said he was "not completely satisfied" with a decision that confirmed that genocide occurred but did not confirm the government's claims about who was involved and about the scale. Victims' associations are a lot less satisfied, which is also to be expected. There are a couple of things to keep in mind here, though. First, the suit was filed in 1993, while the war was still going on, with the intention of producing a legal finding that would obligate other countries to intervene. It made maximal claims about the events, and the evidence to support these claims to the satisfaction of a high legal standard was not available at the time and still is not. So it is not surprising that several years later the court's interpretation should do something less than support maximal claims. This is not necessarily a bad thing, either, in the sense that it offers a basis that will let the BiH government move away from rhetorics of pure victimhood, and maybe toward a more inclusive account of what happened between 1992 and 1995.

In Serbia it does not seem that the judgment is being taken lightly. Over on the far right, Tomislav Nikolić stepped back from self-congratulation to show that he is aware that the finding that genocide occurred will not be useful to RS. No doubt he had in mind the court's statement that Serbia is obligated to support and assist in undoing of the results of genocide. B92 is offering more initial reactions, and while there are unsurprising comments from Vojislav Koštunica and Milorad Dodik interpreting the decision as a complete negation of responsibility, people with real responsibility are offering statements that are more, well, responsible. The statements by the lawyers for the defense and by Serbian war crimes prosecution spokesman Bruno Vekarić are constructive in the sense that they point to the "failure to prevent and punish" finding as obligating Serbia. President Boris Tadić took the opportunity to remind citizens that the state is obligated to clarify its position on the genocide that occurred. These are mostly useful responses.

The greatest hope was always that the court might find a way of reaching a conclusion that would move the process of open discussion forward rather than fixing it at some predetermined point. For now I am inclined to think that they did the best they could. Time will tell us a lot more, of course.

Having said that, it seems that there are also some important issues that are not resolved in the decision. The finding that a crime occurred but that nobody is guilty of committing it tends toward a bizarre sort of mysticism. And the finding that the Serbian state is not responsible seems to be based on a very strict interpretation of rules of evidence, in which the destruction or withholding of documentation may have proved to be an effective strategy, and indirect evidence was not treated as relevant. This seems to offer a sort of legal invitation to criminals to cover their tracks, and the precedent will probably be controversial.

Not everyone will agree with me, of course. What I have seen in Blogland so far: Viktor Marković was hoping for a middle path and got it, while Neretva River flows colder, worried that the decision is a backhanded acquittal of Milošević. And Yakima Gulag finds the end run around the issue of guilt "lame assed" (and I have a feeling she is not thinking of an injured donkey).