Long post: Q and A on the ICJ verdict

As I promised, a review of the ICJ’s decision in the “Case Concerning the Applcation of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro).” The decision is long and dense, 171 pages of pure lawyerese. Summaries are already available in other places, so what I will try to do here is discuss some of the most important issues in a question and answer format. I haven't taken the separate opinions and dissents into account.

1. What does the decision have to say about the jurisdiction of ICJ?

There are no surprises on the question of whether the court has the authority to hear the case. They affirmed their previous rulings. The first 53 pages of the decision are dedicated to recounting the history of the case and to supporting the court’s decision that it has jurisdiction in the matter.

The discussion of the applicability of the Genocide Convention begins on page 54. Here the court affirms its jurisdiction to rule on disputes under the Genocide Convention, but at the same time limits the scope of its ability to rule to Article IX of the Convention. The effect of this is stated in the judgment:
“[The court] has no power to rule on alleged breaches of other obligations under international law, not amounting to genocide, particularly those protecting human rights in armed conflict” (55, para. 147).
The effect of this is to stake the entire force of the judgment on the question of whether or not the events in question constituted genocide – the court has declared that it is not authorized to rule whether crimes against humanity or war crimes occurred. What this means is that any set of facts which are found to amount to something other than genocide are excluded from the verdict. There seems to be a strong implication in several of the court’s findings that the facts correspond to the definition of crimes against humanity, but in the paragraph cited above they have forbidden themselves from saying so.

2. Can a state be charged with genocide?

The next big issue which the court takes on is whether genocide can be taken up legally as a question of state responsibility rather than the responsibility of individuals. The position of the Serbian representatives was that “the Genocide Convention does not provide for the responsibility of States for acts of genocide as such. The duties prescribed by the Convention relate to ‘the prevention and punishment of the crime of genocide’ when this crime is committed by individuals” (59, para. 156). The court concludes that the Convention does prohibit states from committing genocide, and that states can also be held liable for complicity (63-64, paras. 166-169). What may be most important here is the court’s affirmation of “the duality of responsibility” (65, para. 173), by which international law binds both individuals and states. So the court concludes that “if an organ of the State, or a person or group whose acts are legally attributable to the State, commits any of the acts proscribed by Article III of the Convention, the international responsibility of that State is incurred” (67, para. 179). The court goes on to establish that it can find a state has committed genocide even if no individual has been convicted (68, paras. 180-182).

The strongest implication of this relates to individuals who have been charged with genocide by the ICTY. The ICJ has nothing to say about their guilt or innocence, but it has restricted itself to determining whether their “acts are legally attributable to the State.”

3. Has the court applied an unreasonably narrow definition of genocide?

I don’t think that I can conclusively answer the question of what is reasonable or not. This would seem to depend on the outcome that the person asking the question prefers. Would you like future courts to determine that genocide happens frequently or rarely?

However, it is clear that the court opted for a very narrow definition of definition of genocide, and a very high standard for evidence for demonstrating the elements of the crime. The terms in the Genocide Convention that are the source of the most controversy are “intent,” “group” and “part.” So let’s take them one by one.

The issue of intent is, possibly, the source of the most controversy in the case. The Genocide Convention requires a showing of genocidal intent, and the court opts for a narrow definition: they demand specific evidence of genocidal intent, and repeat that it must be “defined very precisely” (70, para. 187), with evidence of “something more” (70, para. 187; yes, this is really the language they used!), and there must be “a sufficiently clear manifestation of that intent” (70, para. 189). The court did not find the evidence of intent presented by the plaintiffs persuasive (132-133, paras. 371-372; 133-134, paras. 374-376). This means that the fact that the crimes took place is not sufficient, nor is a pattern of facts sufficient. A finding of genocide as opposed to a finding of crimes against humanity requires specific and direct evidence of intent (70, para. 188). But Catch-22, the court has already found (55, para.147) that it has no authority to find that crimes against humanity were committed!

In a related fashion, the court finds that the popular term “ethnic cleansing” has no specific legal meaning, and finds that in absence of specific evidence of intent “[n]either 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” (71, para. 190). This may be another Catch-22, as they appear to be ruling out the use of intent as evidence of intent.

Another part of the Genocide Convention that is vague has to do with the provision that genocide involves “intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such” (Article II). The controversial elements have to do with defining “group” and “part.” The court draws mostly on ICTY and ICTR jurisprudence to arrive at a fairly narrow definition of “group,” which must have “a positive identification” (73, para. 194; this would appear to be confirming the respondents’ objection that the category “non-Serbs” was too vague to constitute a “group”). At the same time, they use interpretive criteria to set standards for the definition of “part” – the “part” must be “substantial” but can also be “geographically limited” (74, paras. 198-200). This is meaningful in the sense that it allows the court to find that genocide occurred in a particular place (say, Srebrenica) without having to find that it occurred in the entire country.

4. Did the court adopt an unreasonably high standard of evidence?

In another finding that will have major implications for future cases, the court finds that the standard of proof should be high: “claims against a State involving charges of exceptional gravity must be proved by evidence that is fully conclusive” (76, para. 209). So they rejected the claim that charges could be proved by “a ‘pattern of acts’ that ‘speaks for itself’” (76, para. 207). This also meant that they determined to “treat with caution evidentiary materials specially prepared for the case and also materials emanating from a single source” (77, para. 213), while they regarded ICTY decisions (but not indictments) as reliable, as they had been tested both by the internal procedures of the prosecution and defense and by cross examination (78, para. 214). They also gave weight to reports “from official or independent bodies” if they were “the product of a careful court or court-like process” (81, para. 227). The last finding refers specifically to the 1999 UN Secretary General’s report on the fall of Srebrenica.

Whether this high standard is reasonable or not is of course a matter for legitimate debate. A recurrent controversy in the definition of the “intent” requirement of the Genocide Convention is whether this requires that a document be shown in which genocidal intent is clearly stated. It is not clear that such a document exists in any known case of genocide, and the reasons a government would have for not producing such a document are probably too obvious to state. It seems as if the “fully conclusive” standard requires this, and together with the rejection of the “pattern of acts” standard this does indeed mean that genocide is a very difficult charge to prove before ICJ.

5. How could the court find that VRS was not under the control of SRJ?

On the relationship between VJ and VRS, and on economic support of RS by SRJ, the court makes notes of the arguments by both parties (85-87, paras. 236-240). Their conclusion is that SRJ “was making its considerable military and financial support available to the Republika Srpska, and had it withdrawn that support, this would have greatly constrained the options that were available to the Republika Srpska authorities” (87, para. 241). Much of the uncertainty over the verdict turns over why this factual finding was interpreted as “failure to prevent and punish” but not as “complicity.” The parallel conclusion with regard to paramilitary forces (138-141, paras. 385-395) may be instructive: in order to attribute responsibility for unofficial units to a state, the court requires a showing of their “complete dependence” (140, para. 392) on the state. This is an alternate standard to the one requiring a showing that the state exercised “overall control” (143-144, para. 402), which the court rejected as too broad (144-145, para. 406). The principal reason for not finding that the “Scorpions” were “completely dependent” is that their cases and the cases of Jovica Stanisic and Franko Simatovic have not yet been completed (141, para. 395). This line of reasoning might be thought of as hugely evasive, and could easily be interpreted as severely weakening the finding (141, para. 395) that “the acts of genocide at Srebrenica cannot be attributed to the Respondent.” However, the court treats as an established fact that the genocide was committed by VRS (150, para. 417). As to whether this acquits SRJ of complicity in genocide (which is in fact what the court found), the reasoning in paragraph 422 is instructive, and here is the relevant text:
“Undoubtedly, the quite substantial aid of a political, military and financial nature provided by the FRY to the Republika Srpska and the VRS, beginning long before the tragic events of Srebrenica, continued during those events. There is thus little doubt that the atrocities in Srebrenica were committed, at least in part, with the resources which the perpetrators of those acts possessed as a result of the general policy of aid and assistance pursued toward them by FRY. However, the sole task of the Court is to establish the legal responsibility of the Respondent, a responsibility which is subject to very specific conditions. One of those conditions is not fulfilled, because it is not established beyond any doubt in the argument between the Parties whether the authorities of the FRY supplied – and continued to supply – the VRS leaders who decided upon and carried out those acts of genocide with their aid and assistance, at a time when those authorities were clearly aware that genocide was about to take place or was under way; in other words that not only were massacres about to be carried out or already under way, but that their perpetrators had the specific intent characterizing genocide, namely, the intent to destroy, in whole or in part, a human group, as such” (151-152, para. 422).
In this case, then it seems that the grounds for rejecting charges of complicity is that “full awareness” had “not been conclusively established” (152, para. 423). There might be a bit of a disjunction here with the finding that SRJ “could not have been unaware” (165, para. 461).

This does not apply to the charge of failure to prevent genocide, however. There the court finds that “the Respondent has not shown that it took any initiative to prevent what happened, or any action on its part to avert the atrocities which were committed. It must therefore be concluded that the organs of the Respondent did nothing to prevent the Srebrenica massacres, claiming that they were powerless to do so, which hardly tallies with their known influence over the VRS” (158, para. 438). Similarly with the charge of failure to punish, the court accepts that Serbian authorities knowingly harbored at least one fugitive (160-161, paras. 448-449).

6. How did the court determine that genocide was committed in Srebrenica but nowhere else?

In the long section (89-98, paras. 246-277) in which allegations of crimes other than Srebrenica are considered, with the general finding that these are either unproven or that they constitute something other than genocide. The principal sticking point has to do with “specific intent” (98, para. 277), but the court explicitly states that the fact that other elements of genocide, particularly the killing of substantial numbers of members of a group, were present. A similar finding is made with regard to systematic rape and other physical abuse: the facts are established, but not the intent (115, para. 319). And again the same finding is made with regard to the systematic shelling and sniper attacks against urban populations: the facts are established, but not the intent (118-119, para. 328). And again the same finding is made with regard to expulsion and forced resettlement: the facts are established, but not the intent (120, para. 334). And again the same finding is made with regard to the treatment of prisoners in camps: the facts are established, but not the intent (127, para. 354). They specifically rejected arguments on a point which was a major part of wartime publicity: the use of rape and sexual violence as a means of forcibly influencing demographic change (128-130, paras. 355-367)

Considering the evidence on the destruction of cultural and religious property, where the evidence of Andras Riedlmayer was the source on which the court relied most, the court found that the evidence established the facts, but decided not to consider destruction of cultural property as genocide (144, para. 344). Given the court’s narrow interpretation of the Genocide Convention elsewhere, it is not surprising that they did not decide to set a precedent that would expand the definition. But their endorsement of the facts and their inclusion of them in the record may be important in their own right. And the court did endorse the ICTY finding that “where there is physical and biological destruction there are often simultaneous attacks on the cultural and religious property and symbols of the targeted group as well, attacks which may legitimately be considered as evidence of an intent to physically destroy the group” (144, para. 344). So this opens the door to future consideration of cultural destruction as evidence of genocidal intent, regardless of the fact the court decided not to take that step in this case.

Comparing this analysis to the court’s analysis of Srebrenica, the importance of the ICTY verdicts becomes clear: among the most important foundations of the finding that genocide was committed at Srebrenica were the findings of ICTY against Krstic (105-106, paras. 292-293) and Blagojevic (106-107, paras. 294-295).

7. Can the decision be interpreted to imply that Slobodan Milosevic would have been acquitted of genocide if there had been a verdict in his trial?

There are several reasons why the ICJ decision does not have bearing on the case against Milosevic. Probably the main one is that the court was ruling on a different issue – not on the innocence or guilt of individuals, but on the responsibility of the state. In fact, the decision has very little to say about Milosevic. It also leaves untouched what could have been the central issue that could have linked the two cases, which is whether Milosevic acted as an agent of the state or as an individual. However, the findings do seem pretty clear in placing responsibility on Mladic and VRS rather than on SRJ. A lot of this seems to depend on the unresolved status of cases in other courts, though.

They do offer up a little tidbit, however. They seem to determine Milosevic’s “failure to prevent” (157, para. 437), citing Wesley Clark’s testimony at ICTY.

8. So, is Serbia off the hook?

No. Failure to prevent and punish genocide is a grave violation of international law, and it carries with it positive obligations. The verdict could have been more severe, but it is not a finding that the state is innocent.

The court rejected claims for financial reparations (165, para. 462), but did find that Serbia remains in violation of its obligation to punish genocide (166, paras. 464 and 465).

9. Who the %*&@$% are you to second-guess the world’s highest judicial institution?

Second-guess the ICJ? I wouldn’t dream of it. They are the world’s top lawyers, and I am just some guy with a funny looking dog. In fact, I am not even a lawyer, and anybody who uses me as a source of legal opinion has got to be out of their mind.

In fact, you should ignore everything I have said and have a look at what some real lawyers have to say:
Phon van den Biesen (representative of BH before ICJ)
Sakib Softic (representative of BH before ICJ)
Radoslav Stojanovic (representative of SRJ before ICJ)
Antonio Cassese (former presiding judge of ICTY)
Edina Becirevic (University of Sarajevo)
Martin Shaw (University of Sussex)
David Luban (Georgetown University)
Anthony Dworkin (Crimes of War project)
Shaina at Bosnia Vault and Observer at Neretva River are keeping good track of what the lawyers have to say.


Bg anon said...

I cant leave your long and well written post alone like this without any comments.

On behalf of everybody else thanks for the summary review!

Eric Gordy said...

Thanks, man.

Owen said...

Seconded, that's really helpful.