Waiting for the verdict

Tomorrow the International Court of Justice in the Hague is expected to make its ruling on the lawsuit by Bosnia and Hercegovina charging the Federal Republic of Yugoslavia (at the time of the filing of the suit; Serbia and Montenegro at the time the case was argued; Serbia and Montenegro separately now) with committing genocide between 1992 and 1995. While the case was being argued last year, I wrote a series of posts (1, 2, 3 and 4) looking at some of the issues involved. Of course I cannot predict what the ruling will be tomorrow, but in anticipation of it I'll offer just a few observations.

1. The ruling is going to be one on questions of law, not on factual questions. That is, ICJ is not being asked to rule on the issue of whether violations of international law occurred, but rather on the question of whether they fit the definition of genocide.
2. Some of the propaganda out there puts forth the contention that a guilty verdict would declare Serbia to be a "genocidal nation" or some such variation on this. This is pure nonsense, of course, since no such qualification exists in the law. A lot of the confusion may have to do with the question of what constitutes "guilt." I have argued in other places (in this article, at this lecture, and in my contribution to this book and this one, for example) that the framework offered by Karl Jaspers provides some useful guidance. He distinguishes criminal guilt (the only sort which law is able to declare, and which can only be attached to an individual perpetrator) from other types which might plausibly be thought of as collective or shared: political guilt (the shared burden on the part of all people who are part of a political community), moral guilt (the responsibility that all individuals have for deeds of commission and of omission, including acts of loyalty) and metaphysical guilt (the responsibility that all humans have for evil in the world of which they are aware). I have also argued that it is useful to think of only the first type of guilt as guilt, and the others as responsibility. The state might be guilty, and the people are always responsible, but the whole formulation shows the weakness of trying to cast moral and political questions as questions of law -- responsibility is not "guilt lite," and it is also not a condition which a court can impose on a person or free a person from. A guilty verdict would not change the criminal guilt of the people who ordered, facilitated and carried out crimes, nor would it change the legal innocence of the huge majority who did not. But it would mark a moment at which it would be appropriate to embark on various ways of recognizing responsibility. Of all of the potential definitions of "responsibility" out there, I prefer the simplest one: the ability to respond.
3. Whatever the court finds is going be very important in terms of how the war in Bosnia-Hercegovina is understood. One of the most controversial elements of the charges is that the BH government is asking the court to find not that there were instances of genocide during the war (such as around Srebrenica in 1995), but that the whole war was genocidal. The judges' decision can accept or reject that entire argument, or split the difference in various ways. No court is required to take the political consequences of their decisions into account, of course, but it seems that the way in which the decision is framed will make an important difference (assuming anybody reads it, naturally).

With that, all there is to do is see what happens tomorrow. This type of business will always be implicated in day to day politics. The Serbian Radical Party wants the country to quit the UN in the event of a guilty verdict. Afghanistan's parliament has passed a resolution granting amnesty to a whole hatful of powerful war criminals. And the general assembly of the state of Virginia has passed a resolution apologizing for slavery. Insistence on denial or opening up the books are pretty much the only options available. Time does not make anything go away.