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).


observer said...

Hopefully, the decision will serve as a starting point for a more inclusive dialogue concerning the war in BiH; however, it seems to be difficult to reconcile the ICTY narrative of Milošević presiding over a 'joint criminal enterprise' with the ICJ judgment, which found the state overwhich Milošević presided as guilty only through omission...

zdenka pregelj said...

Must agree with Observer. I am old enough to realize, few days before the decission on Kosovo, the ruling could not be different. (I live in Sarajevo now, as I did live then). I can agree on the part that Serbia did not commit genocide (what happened in Bosnia can not be compared with WWII), but to abolish Serbia from responsibilty, makes me wonder why did Đinđić bother (and got killed because of that), why did NATO bombard Belgrade... Many questions, and no answers.
(It seems Richard (H.) really and trully promissed to Radovan (K.) he will not be indicted - better to say arrested! But today this world is very far from any kind of justice. I only do hope other inhabitants in Bosnia will find the strength to live together, forgiving if not forgeting.

Eric Gordy said...

I'm just not understanding the reasoning behind the conclusion that the decision exonerates Milosevic. It says that that the plaintiffs did not prove that the state is responsible for what Milosevic did, which is not inconsistent with the ICTY prosecution arguing that he headed a joint criminal enterprise rather than s state.

observer said...

Thanks for that response. I don't think the decision itself 'exonerates' Milošević by any means, but I think it does raise questions regarding the specific charge of genocide, and whether he would have been convicted on that specific charge as the ICTY indictment accused him of genocide not just in Srebrenica, but in Bijeljina, Bosanski Novi,
Brčko, Kljuć, among other places.

I think its the sentence, 'Serbia has not committed genocide, through its organs or
persons' that is the cause of a lot of these questions. Initially, I read it as a blanket claim that no one acting in an official capacity for the state committed genocide. If it had just read through its 'organs' and omitted the word 'persons,' perhaps the judges views on this matter would be a bit more clear.

Maybe to the extent 'state organs' were not involved, the joint criminal enterprise could have been orchestrated by Milošević not acting in the capacity of head of state - a co-conspirator perhaps? I hope some one can provide more clarity on this...

Overall, although I tend to agree with the dissenting opinion referenced above; however, the prospect of forcing billions of dollars out of the Serbian state to pay for his actions seems to to say the least an inappropriate remedy.

Eric Gordy said...

That is how I am interpreting the "persons" thing too: that Milosevic was not acting in the capacity of an agent of the state. But I will be giving the decision and the dissents a lot more serious attention over the weekend.

On the money business, this seems like a side issue, since both BH and Serbia are net recipients of aid.

Anonymous said...

I don't know precisely how the evidence presented was analysed by the court, but the facts support the assertion that Serbia was complicit. The weapons that armed strategic Bosnian Serb communities, the buses they used to transport those that were expelled, and the political direction at the beginning of the war came at least in part from Serbia. It is no coincidence that the worst ethnic cleansing - Prijedor, Bijeljina, the eastern enclaves, Visegrad, Foca, etc - was carried out where Bosniak communities stood in the way of the main northern and eastern corridors needed to create a Greater Serbia. How could this have happened without at the very least Serbia's complicity?

"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." *

Of course, a less simplistic account of the war would be welcome - one that acknowledges mistakes, complexity and so on. But do we need to retell the story of Prijedor, Srebrenica, Foca and other places where genocidal acts took place? If so, what is the "inclusive" angle on these tales of suffering?

It would have been truthful and good for both Bosnia, Serbia and the reconciliation process for Serbia to face its role. Of course, there is almost an implied accusation of genocide (at least in Srebrenica) against RS in the judgement and it will be interesting to see what this means for Bosnia's SAA etc. But for Serbia, surely a recognition of complicity would have helped strengthen those modernist shades of opinion that want to move on and express the more civilised side to their nation's character? The judgement incentivises denial.

As for compensation, I can see no benefit in Serbia transferring state funds to the Bosnian government sieve only to worsen corruption and increase aid dependency. But that was never the point. In 1993, the team that launched the ICJ action were hopeful they could establish for history the basic fact of Serbia's role in the Bosnian genocide, which was not at the time regarded as a "maximalist" position by informed opinion in Bosnia, Serbia or internationally.

I know to you this probably sounds old and tired, and I also think it is important to move one (whatever that means); but reconciliation can only take place on the basis of acceptance of facts rather than denial, and the ethnic cleansing campaigns of 1992 and 1995 were clearly aimed at achieving a new political and territorial reality that was conceived in Belgrade.

* this reminds me of a story in 1994 when Bihac seemed about to fall and the Bosnian Prime Minister was told by a British Minister that this event might inject a much-needed dose of realism into the Bosnian negotiating position. Those pesky Bosnians and their obsession with international law and norms!

Eric Gordy said...

Lee -- I understand your point and agree that historians (and other analysts) will probably interpret the evidence that is available as showing a high level of involvement, including command as well as material, financial and political support. The court was being asked to stake out some new ground, I think, and not to decide whether the evidence is persuasive to a reasonable person, but whether it meets a legal standard of proof. And since they were working without precedent, they also had the job of determining what the standard of proof ought to be. You and I might both have preferred less strictness in setting the standard, but (like the Genocide Convention itself, for all its odd language and narrowness) this is now the legal precedent, and it is what there is to work with.

The minus side is that it is not the legal standard a lot of people would have liked for very good reasons, but the plus side is that there is now a legal standard. Law is a strange beast, and often looks to its own development and standards before it looks at the world in which it is operating. In the long term this might not always be bad (even if it is often frustrating and confusing).

On the question of what the political consequences of the verdict will be, I think it is too early to make a prediction. It looks like there are some signs pointing in both directions.

zdenka pregelj said...

Alas, Eric you are righ re consequences.
There are already voices saying let RS become separate state from Federation and then, as a state we can sue RS for genocide, because the court put all blame on RS (and freed Serbia). That would be very sad outcome, but belive me - even that is possible. Of course there are also voices who say it is going to be the good thing for Bosnia as the country (both RS and Federation living in harmony), but who knows. And by the way, criminal enterprise - you mean by that Yugoslav army or the fact that Maldić was receiving his rent in Serbia until 2002?
In the end, I agree it would be unfair to say Serbia as state is guilty for genocide, when Germany was not, Turkey was not etc... Long is the list!

Eric Gordy said...

What I am thinking of under "joint criminal enterprise" are the charges filed against Milosevic as an individual at ICTY. They name some people who were state officials and some who were not as having joined in a conspiracy to violate international law. But in doing this, they were violating Yugoslavian law as well, so this would be a reason that a finding about the guilt or innocence of the state would not have to have any bearing on the guilt or innocence of Milosevic.

But I have to say that I am not certain of this interpretation. I still have to look carefully at the decision, which I haven't been able to do this week, mostly because I am trying to get out from under a mountain of student papers that need grading. I promise to do some real analysis this weekend.