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A Notable Ruling at The Hague

Srdja Trifkovic

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In a landmark case that put a nation on trial for genocide for the first time in history, Serbia has been found not guilty by the International Court of Justice at The Hague. “The court finds that the acts of genocide at Srebrenica cannot be attributed to [Serbia’s] state organs,” said the ICJ president, Judge Rosalyn Higgins, in the ruling made public on February 26. She said it could also not be established that Serbia had been complicit by supplying aid to the Bosnian Serbs in the summer of 1995, when the killings at Srebrenica took place. Reflecting the complexities of the case, the 16 judges deliberated for 10 months. The court’s decisions are binding, without appeal, and enforceable by the UN Security Council.

The Muslim authorities in Sarajevo instituted proceedings against Serbia at the ICJ in March 1993, charging the Federal Republic of Yugoslavia (as it was then) of violating the 1948 U.N. Genocide Convention. The case continued after the end of the Bosnian war in October 1995 and the fall of Slobodan Milosevic in October 2000, even though the Republika Srpska (RS)—a constituent Bosnian entity—subsequently objected to the charge being brought on behalf of “Bosnia-Herzegovina” as a whole. The RS authorities disputed the legitimacy of the filing of the Bosnian application to the Court because it had not been ratified by the post-Dayton presidency, where the Bosnian Serbs would have been able to veto it.

Most major media depositors in the bank of collective Serbian guilt have tried to spin the verdict. The New York Times led the pack, with Marlise Simons’ February 27 headline, “Court Declares Bosnia Killings Were Genocide” and the subhead, “Serbia is Faulted but Cleared of the Crime.” The article’s lead sentence asserted that the International Court of Justice “for the first time called the massacre of Bosnian Muslims at Srebrenica in 1995 an act of genocide”; the paper repeated the claim in an editorial on March 5. In a follow-up article, Simons repeated the claim: “The judges ruled that Bosnian Serb troops committed genocide against Muslims in 1995 in Srebrenica.” (March 6) But as Adward S. Herman and David Peterson point out in an essay on the ICJ ruling, such framing of the decision is deceitful for several reasons:

One is that this case was about Serbia’s responsibility for the Srebrenica killings, which the ICJ denied but the Times did not feature. A second reason is that the “declaration” of the ICJ that this was a case of “genocide” was not based on any independent investigation by the ICJ itself, but was derivative . . . from the ICTY’s rulings . . . [The ICJ] merely quoted the ICTY’s findings of “genocide,” employing them contextually in an ex cathedra fashion without itself opening this critical question. Although this was the only case ever to be argued before the ICJ under the Genocide Convention, and though the Judgment is replete with mentions of “genocide,” the 15 voting-judges at the ICJ produced no finding on whether the Srebrenica-related killings constituted genocide—as anyone who checks paragraph 471 of the Judgment can plainly see.

The media spin could not alter the significance of the ICJ ruling. Symbolically, it came just two weeks before the first anniversary of the death of Slobodan Milosevic in detention at the other court in the Dutch capital: the Yugoslav war crimes court commonly knows as The Hague Tribunal. The “Bosnian” case against Milosevic had rested on his alleged incitement of the Bosnian Serbs to commit genocide, and his supposed personal responsibility for its occurrence. As John Laughland was quick to note in The Guardian on February 28, Milosevic was posthumously exonerated by the ICJ. He had always argued that neither Yugoslavia nor Serbia had command of the Bosnian Serb army, Laughland says, and this has now been upheld by the world court; and by implication, Serbia cannot be held responsible for any other war crimes attributed to the Bosnian Serbs. The ruling is about far more than Milosevic:

Ever since the end of the cold war, the US and its allies have acted like vigilantes, claiming the right to bomb other countries in the name of humanity. The Kosovo war was the most important action taken on this basis and, as such, the curtain-raiser for Iraq. Fought, like the Iraq war, without UN approval, it was waged partly because the international community felt it should have intervened more robustly against Yugoslavia over Bosnia. It now turns out that Serbia was not in control in Bosnia after all. The ruling therefore punctures a decade-and-a-half of lies in support of the doctrine of military and judicial interventionism.

If Milosevic were still alive, the ICTY would have to devise some creative stratagems to deal with the implications of the ICJ verdict. It would have found them, no doubt: Both institutions are based at The Hague, but they should not be confused.

The ICTY is a political, rather than judicial institution. It was established by the UN Security Council in 1993 on the basis of Chapter VII of the Charter (Resolution 827), with the self-proclaimed jurisdiction for crimes committed only after January 1, 1991. The formal basis invoked for the creation of the Tribunal, Chapter VII of the U.N. Charter, deals with “threats to the peace, breaches of the peace, and acts of aggression” and, to meet them, it authorizes the U.N. to deploy the armed forces of its member-states in peacekeeping operations. It is hard to interpret this as carte blanche to set a court to investigate individuals, indict them, try them, find them guilty, and keep them in prison. The ICTY proponents deliberately inserted the new institution into The Hague to confuse the issue, however, and to endow it with an aura of respectability reflected from the ICJ.

Unlike the ICTY, the International Court of Justice was established in 1945, at a time when international law was still regarded as the province of jurists and not of politicians who use it to pursue political ends. It deals with the disputes between sovereign states which agree to its jurisdiction in advance, and operates on the basis of established norms of public international law. Its verdict indirectly confirms what I have argued for years: that the crimes in Bosnia in 1992-1995 were not the direct result of anyone’s “nationalist project” as such. The crimes were the results of the war, not its causes. However severely they must be judged, they were the consequence of a great, complex international blunder, and of Alija Izetbegovic’s decision to secede. Events cut channels deeper and less controllable than the intentions of anyone.

The fighting became an extrapolation of a collapsed Bosnian social structure, but it started as an event in a Yugoslav civil war. It is simply unintelligible on other terms. The Bosnian war is not explained by “ancient hatreds” but by loyalties, by anger and by suspicion. The Yugoslav loyalties were twentieth-century, but the suspicions—automatic distrust in time of danger—were rooted in the pre-Yugoslav past. In the end, the effect of the legal intervention of the “international community” with its act of recognition of Izetbegovic’s regime was that any loyalty to the Serbian identity was made to look like a conspiratorial disloyalty to “Bosnia”—largely in the eyes of people who supposed ex hypothesi that if there is a “Bosnia” there must be a nation of “Bosnians.” Never was there a better case of the accuracy of Ovid’s rhyme,

Treason doth never prosper. What’s the reason?
If it prospers, none dare call it treason.

Law courts throughout the ages have failed to escape this dismal logic. The ICJ, with its ruling on February 26, at least tried. It may yet help us set straight the lamentable and complex recent history of the Balkans.

Read the entire article on the Chronicles Magazine website (new window will open). Reprinted with permission of the author.

Posted: 15-Mar-07

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