The ICJ genocide trial: Introductory notes

There would seem to be two issues that really matter in the dispute between Bosnia-Hercegovina and Serbia and Montenegro which is currently being heard by the International Court of Justice (ICJ). These are:
1) Did genocide occur in Bosnia-Hercegovina?, and
2) If there was genocide, was it a result of policy on the part of the Federal Republic of Yugoslavia (SRJ)?
Then there is a third question which, while it is of interest primarily to lawyers of a certain type, may determine the outcome of the proceedings, which is:
3) Does the court have the authority to try the case?
Then there is a question which is not a legal one at all, but might be the one that is most interesting to people following the case, which is:
4) What would be the political consequences of a guilty verdict?
I doubt very much that I can give definitive answers to any of these four questions, but I think I can try to give a picture of some of the issues that will have to be considered along the way to an answer. First, an observation -- the issues at stake are at bottom political issues, and judicial institutions do not necessarily provide the best forum for political issues to be resolved. However, when there is a lack of will on the part of political institutions, this may be the only forum available. In that context, I feel confident in making a prediction: no matter what the outcome, very few people will be satisfied.

Having said that, let me see whether I can shed any light on the questions, one by one. I will be posting short essays related to each of the questions in a series of four posts. A word of caution: although I do own a briefcase, I am not a lawyer. Merely a talented amateur, like Emma Peel.


T K Vogel said...

Eric, terrific that you went through the trouble of summarizing and commenting on what's at stake in this case. I'm just wondering about two things: when you say there's a lack of will on the part of political institutions to tackle such cases, what institution do you have in mind? Would the SC be the equivalent to the ICJ in the political sphere, in the sense that there might exist an implicit social contract of a political nature equivalent to human rights law of which the SC might be viewed as a guardian? Second question -- would perhaps domestic courts in Serbia and Bosnia in principle be a more appropriate venue for this case, in your view, as far as the domestic political consequences are concerned?

Eric Gordy said...

Hiya Toby! I actually hadn't thought about SC or the UN institutions at all, but only of the politicians of SCG and BH. But I should admit that the possibility of a settlement was always remote: BH wants a voluntary admission of guilt, and SCG wants a complete withdrawal of the charges. So in that case, there is probably no option but to go to court. It might also be true that the reparations issue is just a distraction, and that what BH is really after is symbolic satisfaction: a finding on genocide. If that is the case, they can only get it from a court.

On the second question, it is hard to imagine domestic courts doing any better in this case than they do generally. Ideally it would be best for both sides to cooperate in setting up an independent finder of fact, but that is too unlikely, at least for now, even to be brought up.

Daniel Durini said...


I linked this interesting discussion of yours from my blog. I really hope you don't mind! I am still very esceptical about lots of the issues touched by this trial. Anyway, this year seems to be one of the toughest so far for Serbia, most probably left without Kosovo and Montenegro by the end of it.

Anyway, I keep comming here to pick up good infos.


Eric Gordy said...

Gracias, Daniel! And I recommend to anyone who wants an explanation en castellano to pay a visit to Eslavos del Sur.

About being sceptical on the issues .. . I think both the events being discussed and the fact that the suit is in court 12 years after being filed without an agreement between the countries point to the irresponsibility of politicians. Like Dusko Radovic said about marriage, "Brak se uredjuje zakonom samo onda kad ne moze drukcije. Zbog toga ne dozvolite da vam zakon uredjuje brak."

Daniel Durini said...


Puno ti hvala onda, na reklami. A sto se tice Duska Radovica, potpuno je u pravu. Jedini problem je za sada to sto se bas u trenutku ogromne bitke za hegemonijalnu upravu energetskih rezerva y geopoliticke y geo strategijske kontrole, vodjene izmedju EU, Rusije i SAD-a, bar sto se tice Balkana, sa ne malim posledicama za interese Kine, Indije i bliskog Istoka, opet sve lomi na ledjima, ovoga puta, samo Srbije. Odavno sam prestao da verujem u dobronamernost velikih sila koje sada kazu da koriste evropsku integraciju da bi stimulisale "evropeizaciju" nasih podneblja i ocuvale stabilnost regije, koji je od sudbonosne vaznosti za ocuvanje i Evropske Unije kao takve. Medjutim, cinjenica je da EU ne moze da svari ni poslednje clanice koje su u usle u njen sastav i, posle debakla oko Ustava, nece primati vise clanica bar za jedno deset godina. Nije slucajno da je to izveden stav i SPD-a iz Nemacke, publikovan juce. A SAD uporno vodi ka rascepanju SCG-a, dok sa druge strane sili na jedinstvenost BiH. I ne treba zaboraviti i najvece vojne baze u Evropi, upravo NATO-a, jedne na Kosovu a druge u Bosni (i trece u Makedoniji, koja trenutno samo ceka da vidi kad ce poceti i rat na njenom severu).

Tiempo al tiempo...

Saludos y felicidades,