I have just been informed by a friend, but have not yet seen in the news, that Ivica Račan died this morning.
Update: I will have to guess, since nobody is confirming the news, that either there is a conspiracy or there is a false alarm. I'm going with false alarm.
2007-04-13
2007-04-12
East Ethnia: Back with you as if it had never been gone
After ten days of confusion, rushing about, and bricolage, my dear pet computer is back from the majstori. Apparently it needed a new hard disc, so Apple sent one, but it was a bad one, and Apple had to send another. Srpska posla s tim jabukama! This comeback post jets your way from some random hotel lobby, where I am waiting for the bus that will take me to bucolic New York, where every April the world's finest Balkanologists attend the ASN conference.
I know that I have missed major events which could have made for some fine blogging. Will be right on it.
I know that I have missed major events which could have made for some fine blogging. Will be right on it.
2007-04-08
An explanation for blog silence
Nothing dramatic. It's the usual end of the semester work crunch, plus my computer is at the vet. Posting will be fairly intermittent for a while. East Ethnia, as always, thanks its readers for their patience.
2007-03-29
Guidance
If you are looking for sensible commentary, you can always rely on Richard Falk. And if you are looking for guidance on the difference between right and wrong, Anegdote has that.
Raštafarijanizam
One of our happier surprises last summer was going to dinner with some friends at a place they chose, Restoran Oskar in Dorćol. This was in fact a place we had passed hundreds of times but never noticed, its appearance is not remarkable from the outside and not much more remarkable inside (when we arrived, we were the only customers save for a couple of cops who were watching a football match). The food was traditional and perfectly prepared, and nicely set off by good rakija and some outstanding Slovenian wine.
Like in so many good places, the best approach at Oskar is to ignore the menu and ask the waiter what is good today. On that day they were featuring sarme (lamb sarme!) with raštan kupus, and the waiter more or less insisted that we have this Montenegrin specialty. Everyone at the dinner will support me in saying these were the best sarme we had eaten in our lives. And naturally we became addicted to raštan, got it and made some sarme of our own, and began to lament the fate the fate that awaited us on our return to a forlornly raštan-free Massachusetts. Apparently other lovers of that little slice of leafy heaven have confronted the same problem.
But now a friend of East Ethnia writes in to tell us that, after exhaustive and delicious research, he has determined that raštan is nothing more or less than that humble and hearty (and monumentally healthy) Southern staple, the collard green. I love them, children hate them, and the bitterness can be turned into a fine sweetness by sauteeing them with a bit of vinegar. Anyone who is intimidated by their healthiness should be reassured by the fact that they go best with some nice, greasy, salty smoked meat.
This also solves an old East Ethnian mystery. Way back in 2006, we posted a photo of a proud farmer with what had to be the biggest kupus anyone had seen. A canny philologist noted that it looked a lot like blitva. Well, there you have it.
Like in so many good places, the best approach at Oskar is to ignore the menu and ask the waiter what is good today. On that day they were featuring sarme (lamb sarme!) with raštan kupus, and the waiter more or less insisted that we have this Montenegrin specialty. Everyone at the dinner will support me in saying these were the best sarme we had eaten in our lives. And naturally we became addicted to raštan, got it and made some sarme of our own, and began to lament the fate the fate that awaited us on our return to a forlornly raštan-free Massachusetts. Apparently other lovers of that little slice of leafy heaven have confronted the same problem.
But now a friend of East Ethnia writes in to tell us that, after exhaustive and delicious research, he has determined that raštan is nothing more or less than that humble and hearty (and monumentally healthy) Southern staple, the collard green. I love them, children hate them, and the bitterness can be turned into a fine sweetness by sauteeing them with a bit of vinegar. Anyone who is intimidated by their healthiness should be reassured by the fact that they go best with some nice, greasy, salty smoked meat.
This also solves an old East Ethnian mystery. Way back in 2006, we posted a photo of a proud farmer with what had to be the biggest kupus anyone had seen. A canny philologist noted that it looked a lot like blitva. Well, there you have it.
2007-03-26
Izadjite na terasu....
If you are not happy with your dictionary, that may be because of the way it subjects the nice Morava-Vardar race to the spendthrifty Dinarians. So say a bunch of deep thinkers, who will no doubt say it again.
2007-03-23
Up jumped the US representative, he's the one with the tired eyes
I know I haven't been posting much lately -- it's been a busy period at work, and with Mrs Ethnia off on a trip, this has given me the heavy but delightful obligation of single-fathering it these past couple of weeks. Expect the pace to pick up over the weekend.
In the meantime, a faithful reader, who is just fine but prefers to remain anonymous, writes in to ask for your recommendations for the most fabulous new Balkan films. Recommend them in the comments!
In the meantime, a faithful reader, who is just fine but prefers to remain anonymous, writes in to ask for your recommendations for the most fabulous new Balkan films. Recommend them in the comments!
2007-03-15
The first time as tragedy, the second time as impossibly close to satire
Things that just cannot be made up: who is getting paid to advise the US military on how to transform the wretchedly disastrous and ill-conceived adventure in Iraq into something much worse? You must have already guessed: somebody with experience in that area.
2007-03-12
2007-03-11
Hardly knew ye
A year ago Slobodan Milošević died. The manner of his death was different from those of the people whose deaths he caused. He was not shot in the street, or kidnapped and shot, or run into by a truck filled with sand on the highway. He was not pulled out of a hospital and shot in a field. He was not kidnapped from a train after which all trace of him was lost. He was not incinerated in a bombing or killed by sniper fire from the hills. He was not rounded up with the other surviving males from his town and shot. His body was not transported by freezer truck to an air base under cover of night. He was not left to face a bombing attack on RTS while the higher-ranking employees evacuated.
Most indications are that he is still dead.
2007-03-08
69% support, sort of
I expect there is quite a bit more in the raw data than in the part of the announcement that is carried in this news story. Strategic's survey finds that 69% of people in Serbia support cooperation with ICTY, 15% for reasons of justice, 28% to avoid negative consequences, and 26% to satisfy the EU. I'd like to do some crosstabs and longitudinals on that.
Update: OSCE has the summary.
Update: OSCE has the summary.
2007-03-07
The royal y'all
My favorite newspaper Press carries a declaration from RS politicians. Pay attention to the prepositional phrase that begins the first sentence:
"U ime Republike Srpske, odbacujemo kao zlonamerne i štetne sve pokušaje da se nametne kolektivna krivica za zločine počinjene u proteklom ratu i na tako iskrivljenoj slici izazove nasilna i radikalna promena ustavnog uređenja Bosne i Hercegovine, na štetu RS i njenih građana, precizira se u zajedničkoj izjavi srpskih zvaničnika u BIH i RS."Hey guys (and they are all guys):
1. Vas šestorica niste "Republika Srpska,"
2. Šteta ne bi bila po građane nego po vas,
3. Nije bre narod kriv nego ste vi.
2007-03-06
For your reading pleasure
Now available from the Džeferson Institut in Belgrade: Informal Economies of St. Petersburg: Ethnographic Findings on the Cross Border Trade, by Irina Olimpieva, Oleg Pachenkov and Lubov Ejova with Eric Gordy. It's a short text, perfect for an afternoon on the beach.
2007-03-05
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:
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:
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:
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)Shaina at Bosnia Vault and Observer at Neretva River are keeping good track of what the lawyers have to say.
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)
2007-03-02
Yugo faster than yu ought to
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.
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).
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).
ICJ's releases today
A press release, the full text of the court's decision and of separate and dissenting opinions, and a not very brief summary. I will have some sort of analysis, most likely tonight.
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