The ICJ’s perverse judgement

by Chris Bertram on March 1, 2007

OpenDemocracy has a very good article by Martin Shaw on the recent International Court of Justice decision that found that the charge of genocide against Serbia in relation to the Bosnian was not established, a finding that has been seized upon by Milosevic apologists everywhere. As Shaw points out, the court did find that members of a protected group were systematically killed, raped and abused, and did decide that the Srebrenica massacre was genocide. Perversely, though it also found that it had not “been conclusively established that the massive killings of members of the protected group were committed with the specific intent (dolus specialis) on the part of the perpetrators to destroy, in whole or in part, the group as such.” Also whilst conceding the involvement of the regular Yugoslav forces with the Bosnian Serb perpetrators of the pre-Srebrenica (and therefore not-genocidal) operations, the court limits their responsibility for the massacre that they are forced to characterize as genocide principally to that of mere omission. A feeble verdict.

{ 52 comments }

1

Daniel 03.01.07 at 8:27 am

I think that the article is trying to make too much of its case, and that the ICJ came up with the only verdict it could have done. There isn’t a smoking gun linking the Serbian government to Srebenica, and everyone has known this for a while; for every piece of circumstantial evidence on one side, there is a piece of circumstantial evidence pointing the other way.

And on the non-Srebenica war crimes, I think the ICJ has it right too – there is a difference between “fighting a civil war” and “genocide”. The Serbian government fought a civil war and was responsible for numerous war crimes in fighting it, but it was a political conflict, like Darfur (where the Shaw/Brivati/Hoare guys also tend to disagree with the international law experts on the subject of genocide).

I think that the trouble here is that a lot of people want a definition of genocide which a) has the bar set high enough to justify the “Eustonian”[1] interpretation of the Genocide Convention as meaning that a finding of genocide mandates immediate military action by the UN, but which b) has the bar set low enough that more than one or two cases a century will fall under the legal definition of genocide. It’s inconsistent to hope for both, and in fact it looks like neither.

In any case, the facts are what they are and have now been established in the ICJ. It would be a pretty weaselly apologist who tried to claim that the Serbian state hadn’t committed appalling crimes on the basis of that verdict; I really do think that openDemocracy have got themselves hung up on the word “genocide” for reasons I don’t understand.

[1] A more accurate description would be “wrong”

2

Lee Bryant 03.01.07 at 9:12 am

The ICJ judgement was a kick in the teeth to those in Serbia who have worked so hard to use acceptance of their role in the Bosnian genocide to shake the country out of its blanket of denial.

For the victims, especially the victims of Omarska, the Foca rape camps, the eastern enclaves and other places where Serbian ethnic cleansing was patently genocidal both in intent and in character, this is especially shocking.

daniel: please leave your own disputes with Eustonites or any other non-participants in this story to one side. The debate about genocide is not about interventionism, in fact for some of us it never was. Just tell me how the cleansing of Prijedor, Kozarac and other majority Bosniak communities in the RS heartland (and especially the camps) does not fit the definition of genocide.

Clearly, Serbia was complicit in the ethnic cleansing of 1992 and 1995, though I accept that finding a smoking gun for Srebrenica is not as easy as people think. A judgement to the effect would have been better for Serbia, better for Bosnia and also better for future human rights protection (by disincentivising the use of proxy forces to commit atrocities).

3

Chris Bertram 03.01.07 at 10:00 am

Daniel, what Lee said, basically, except that for the reasons put forward by Steven Poole in _Unspeak_ at pp. 91 et seq I’d resist the use of the term “ethnic cleansing”. We absolutely have to maintain the distinction between our evaluation of what happened and the political uses to which it has subsequently been put.

4

Adam 03.01.07 at 10:12 am

If anything’s feeble Chris (and I happen to agree with you that it is) it isn’t the judgment. It’s the conception of genocide that the ICJ is forced to work with. So Daniel’s line of argument is better targeted than those who are moaning about the verdict. But he might be underestimating the number of weaselly apologists out there…

5

Katherine 03.01.07 at 10:34 am

May I just point out that failing to find something “genocidal” is not exactly putting a stamp of approval on it. There is no benefit in the long run in labelling everything genocide, because the label will lose its meaning eventually. War crimes and crimes against humanity sometimes cross over with genocide and each other and sometimes they don’t.

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Chris Bertram 03.01.07 at 10:43 am

You may point out whatever you like, Katherine, but genocide is, inter alia, a legal term defined by a convention:

http://www.unhchr.ch/html/menu3/b/p_genoci.htm

7

Hidari 03.01.07 at 10:48 am

I don’t mean to really get into this debate, because I know in advance what will be said on every side and why it will be said, but on one specific point I have to disagree with Martin Shaw.

‘First, the ICJ is sticking to a narrow understanding of genocide; thus failing, as Judge Al-Khasawneh says, “to appreciate genocide as a complex crime and not a single murder.”‘

I have absolutely no idea what Al-Khasawneh’s statement might possibly mean, but if the ICJ is sticking to a narrow definition of genocide: good for them. The dark fact is (and this is a fact) that most large scale wars have involved massacres at some point or other, and Srebrenica, while an apalling act of mass murder, was not really that unusual in the context of warfare (let alone European warfare which, despite Western propaganda, has tended to be particularly violent by world standards).

These massacres include many acts which have never to the best of my knowledge, been described as ‘genocide’, including the Katyn massacre, the Hama massacre, the St. Bartholomew’s Day Massacre and so forth and etc. Now the point is that once you broaden the definition of ‘genocide’ to that extent then almost every war in which civilians are targetted (most of them) becomes ‘genocidal’.

So: in short, I think the ICJ is right to keep to the narrowest possible definition of ‘genocide’: i.e. that that word means the deliberate attempt to exterminate all members of an ethnic group or the equivalent (i.e. a ‘class’ of people, such as the Kulaks under Stalin): or at least ‘all’ within a relevant geographical area.

Thus, the Judeocide would become, as it were the ‘ideal type’ of genocide: Hitler wished to murder every last Jewish man, woman and child in Europe (12 million people). There are other circumstances in which similar activities have taken place (another point: I’m sorry but numbers matter. The fact that the European invasion of the Americas led, eventually, to somewhere in the region of 50-60 million deaths (at least) does matter: even though the Europeans probably did not wish to exterminate every last member of the indigenous population they clearly didn’t care whether that was the result of their actions, and the scale of the slaughter ‘tips the scales’ as it were, towards genocide).

I don’t mean to be smart or a moral relativist (as if!), but as well, when you start loosening definitions, then don’t be surprised when people start to use them against you. Nobody sane would argue that the US invasion of Iraq is ‘genocide’ or anything like it….under the ‘tight’ definition. But when you start to loosen it to simply mean: ‘bringing about a situation where quite a lot of people die’ then don’t be surprised when Serbs (and others) start turning round and saying: well who are the genocidaires here?

8

Chris Bertram 03.01.07 at 10:58 am

Hidari, I refer you to my previous comment (6) above. The ICJ did not keep to what you refer to as “the narrowest possible definition”, they claimed to be applying the definition in the convention. I’m perfectly happy that they work with that definition. However, for the reasons set out by Lee in his comment about, I think it perverse of them to judge that the acts perpetrated in Bosnia were not, legally-speaking, genocidal.

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Hidari 03.01.07 at 11:12 am

Incidentally I should state that I was wrong: some people HAVE described Katyn and Hama as ‘genocide’. And, looking about even events that are very rarely described as genocide (the suppression of the Paris Commune for example) have, by some people, been described as ‘genocide’. So it seems that it has become a de facto usage of the word ‘genocide’ that it now simply means ‘a situation where a lot of people are killed’.

10

Daniel 03.01.07 at 11:34 am

please leave your own disputes with Eustonites or any other non-participants in this story to one side

I don’t think this is possible. The dispute in question with the Eustonites is specifically about the matter at issue; on the question of whether the legal definition of genocide is drawn widely enough to include what happened in Bosnia, they agree with Chris and I agree with the ICJ.

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abb1 03.01.07 at 11:43 am

Interesting. Convention’s definition goes:

intent to destroy, in whole or in part, a national, ethnical, racial or religious group,

but I don’t think this is ever the case. All they want (even in the case of Hitler) is to remove the group, it’s just that they calculate that destroying it (by killing, sterilizing, inflicting conditions, etc.) is the most efficient way to achieve it.

Physical extermination is not the intent, but means to an end. I imagine, if they could instantly beam all the Bosnian Muslims to another planet (or even a different continent) by a push of a button, they would certainly do it. Genocide is a ‘solution’; underlying intent is something else.

And I think it would be much better to go after the real intent, which is to remove rather than destroy, which is the cause of what follows, whatever form it takes.

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Steven Poole 03.01.07 at 11:43 am

I’m always intrigued by arguments that go “Well, genocide should mean this or that”. Article 2 of the Convention is clear enough (not limited to killing; and including destruction “in whole or in part”). And signatories to the Convention undertake to prevent (Article 1) as well as to “punish” genocide – as well as conspiracy to commit it, incitement to it, and any “attempt” to commit it. So it is not clear to me that what Daniel calls the “Eustonite” interpretation is actually wrong. The Convention would of course be useless if you had to wait until all members of a group were killed before wagging your legal finger.

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Daniel 03.01.07 at 11:48 am

(specifically, I don’t think that the finding of the absence of evidence for a specific will to destroy the group as such was perverse. I also think that the ICJ makes a pretty good legal argument in para 190 against Steven’s view that “ethnic cleansing” is merely a euphemism for genocide.)

furthermore:

Just tell me how the cleansing of Prijedor, Kozarac and other majority Bosniak communities in the RS heartland (and especially the camps) does not fit the definition of genocide

Under one version of what happened, it does fit that definition. Under another version it does not fit the definition of genocide because there was not a specific intention to destroy a protected group in full or in part, and on the question of whether there was a specific will, there is not sufficient evidence to meet the standard that the ICJ was using, which is not itself a perverse standard.

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Daniel 03.01.07 at 11:51 am

Steven: there is an interpretation of the Genocide Convention under which humanitarian interventions are permitted even without Security Council mandate, but the Eustonian interpretation (as set out in a number of Brian Brivati’s articles on Darfur, among others) actually suggests that military action is mandatory.

15

Steven Poole 03.01.07 at 12:12 pm

Ah. Well, some action is evidently mandatory according to the undertaking in Article 1 to prevent genocide, is it not? The Convention does not specify that such prevention be military, but it might be argued in some cases that that is the only means by which to honour the undertaking. There seems to be a potential intepretive tension between that and Article 8’s envisaging signatories going through the appropriate bodies of the UN.

I also think that the ICJ makes a pretty good legal argument in para 190 against Steven’s view that “ethnic cleansing” is merely a euphemism for genocide.
IANAL but it doesn’t seem like a pretty good argument to me. The ICJ still handles the phrase in scare quotes. And the dissenting opinion of the Vice President addresses the point so:

The jurisprudence of the international criminal tribunals on this point is less amenable to artificial distinctions between the intent relevant to genocide and that relevant to ethnic cleansing than the Court. The Appeal Chamber in Krstić has clearly held that the pattern of conduct known as ethnic cleansing may be relied on as evidence of the mens rea of genocide. [p12]

16

Daniel 03.01.07 at 12:12 pm

by the way, just to clear this up, my reference to “Eustonian” isn’t meant to be pejorative. They’re a genuine political grouping which does exist, they deserve to be taken seriously and that’s what I’m doing, on a question of one of their most important political points, with which they are closely identified, and on which subject I don’t agree with them. There are a number of reasons why one might believe that the ICJ’s judgement was wrong, but as a matter of fact, Martin Shaw and Chris believe it was wrong for the specific reason that they took an excessively narrow interpretation of the Convention. I’d also note that it’s perfectly possible to still be broadly in favour of military intervention in Bosnia and agree with the ICJ, because whether or not this was a case of genocide carried out by Serbia, it was still clearly an imminent humanitarian disaster; this is particularly important to keep clear in analogy with Darfur.

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Daniel 03.01.07 at 12:18 pm

Well, some action is evidently mandatory according to the undertaking in Article 1 to prevent genocide, is it not?

Yes and Serbia is specifically found guilty under the convention of not having taken such action. But I don’t think that outside hypothetical constructed cases, you can get to a situation where the Convention mandates something that would otherwise be a war of aggression – compare with the domestic law on murder, where it’s possible to create a set of circumstances under which it would be legal for me to shoot Fred West.

I guess that neither of us are lawyers, but I tend to prefer the majority opinion. Note that the Appeals Court in Krstic is dealing with prosecutions of individuals and a big chunk of the opinion is about the extreme difficulty of establishing mens rea in states.

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soru 03.01.07 at 1:18 pm

genocide is, inter alia, a legal term defined by a convention

Which was altered in the draft by Stalin’s lawyers so that the liquidation of the kulaks didn’t count: it omits the word ‘class’ as a reason you are not allowed to kill a group of people.

Consequently Pol Pot’s Cambodia definitely wasn’t genocide, and Rwanda probably wasn’t (at least according to Jared Diamond’s account), and a degree of reinterpretation that would allow them to count as such would probably also stretch to insufficient funding for minority-language radio stations or the equivalent.

It’s why I prefer the term democide – the deliberate killing of a demographically significant number of people, an attempt to make a demographic change by force.

As that’s a quantitative distinction, not qualitiative one, it’s hard to frame using standard legal language, which always imply a binary split into the forbidden and the permitted.

Maybe there could be some kind of points scheme: collect enough points, you have your licence to run a country taken away.

19

Daniel 03.01.07 at 1:29 pm

I also prefer “democide”, but I’d get away from this idea of “demographic change”. I don’t see what benefit is achieved by making special and different crimes over and above mass murder.

20

abb1 03.01.07 at 1:36 pm

I like “an attempt to make a demographic change”, I think it’s exactly the point.

21

soru 03.01.07 at 3:21 pm

9/11 was certainly mass murder, I can’t see it being usefully described as democide.

There pretty much has to be a difference between political terms and legal terms, between analytical categories and crimes.

22

ejh 03.01.07 at 4:36 pm

It’s not just a question of whether one agrees that what occurred in Bosnia was genocide (or attempted genocide). It’s whether people who do not agree that it is so thereby expose themselves as either apologists for genoicde or weak-willed individuals who do not wish to prevent it (unlike their clear-minded antagonists). It’s because the Eustonites are so very keen to characterise their targets in this objectionable fashion – indeed, it’s their hallmark – that I do not agree with Daniel that “they deserve to be taken seriously”.

As for the verdict itself, I don’t see that the court could have reasonably concluded otherwise. I think concepts in law need to be tight if we are to have courts and verdicts in the first place. Things need to be conclusively established and the actual charge could not be. Doesn’t mean that murderers aren’t murderers.

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Daniel 03.01.07 at 4:59 pm

I’ve just seen that Oliver Kamm seems to take the same view as me; I should probably therefore withdraw the characterisation “Eustonite”.

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Aaron Swartz 03.01.07 at 5:18 pm

Looking at this post without any domain knowledge, it really seems quite odd. A judicial body, after a formal process of reviewing the evidence, comes to an empirical conclusion about the facts. Bertram responds that their conclusion is “perverse” and “a feeble judgment”, but provides no evidence to dispute their conclusions.

Perhaps we disagree about what the standard of care should be for laymen questioning judicial conclusions, but surely we agree that there is some standard. You can’t just get mad at the facts for not turning out the way you’d like.

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Daniel 03.01.07 at 5:21 pm

Aaron; the fourth through ninth words of the first sentence of the post form a hyperlink to the evidence you seek.

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Aaron Swartz 03.01.07 at 5:51 pm

My apologies. Based on the contents of the post, I assumed the link was simply a recitation of the court’s conclusions, not a critique. I should have been more careful. Thanks (once again) for setting me on a better track, Daniel.

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Matt 03.01.07 at 6:45 pm

I’ve not read the full decision of the ICJ, but from the parts quoted in the linked article it doesn’t seem to be as obviously egregious as Shaw makes it out to be. One of his major objections is to the conclusion that the killings as Srebrenica could be accepted as genocide while the larger actions by Serbia in supporting Bosnian Serb action (and action directly by Serbia) in the war before that point might not be genocide, at least as that is understood by the law. Now, maybe he’s right that these actions were genocidal and so the court is wrong. Of course he doesn’t have to meet the same standards of legality as the court (rightfully, I think) does. But, it is certainly not obvious that a quite viscious civil war, one intendeing to drive the Bosnian Muslims out of a large area and to extend Serb dominance, could be fought without meeting the legal definition of genocide but then that, at a certain point, the actions and plans tip from this already quite bad goal to the worse one of destroying all or part of the Bosnian Muslim population as such. If so, then the court’s conclusion on that part is perfectly reasonable. I’m far from an expert on this war and I’ve not read the ICJ decision nor seen all the evidence so I’m hesitant to come to a substantive conclsuion. But Shaw seems to think the conclusion is absurd on its face while it clearly isn’t. For example, it isn’t the case (nor could it be) that merely seeking to drive an ethnic group from a terriitory is genocide, even if this action involves, quite predictably, killing a fair number of the goup in question. Ethnic cleansing of this sort is a violation of human rights and a crime, but it’s a distinct crime from genocide, and a good thing, too, since otherwise the US would clearly be complicit in genocide in Kosovo since it made possible and abeted the ethnic cleansing of the majority of the Serb population of Kosovo. I’m less certain about the decision relating to Serbian responsibility, but again I don’t have all the evidence in front of me. But, it does seem pretty clear that Shaw at least over-states the obviousness of part of his conclusion.

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Matt 03.01.07 at 6:51 pm

David Lubin also has a useful discussion of the issue over at the Balkanization blog. That’s here:

http://balkin.blogspot.com/2007/02/world-courts-wishy-washy-genocide.html

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JR 03.01.07 at 9:09 pm

Before Srebrenica, the international community and Serbia had a tacit arrangement- Serbia could commit genocide against the Bosnian Muslims, as long as they did it slowly. As long as there were no major massacres that would make the front page or the evening news, the Serbs could kill and displace as many Bosniaks as they liked. You may remember the literally absurdist peace talks with Cyrus Vance and Lord Owen for the US and Britain and the murderer Radovan Karadzic for the Bosnian Serbs. These talks were not intended to produce results. They were intended to give the appearance of progress so that no groundswell for intervention would build while the Serbs continued to kill Bosniaks unabated. You may also recall the arms embargo on Bosnia that prevented the Bosnian Muslims from defending themselves against weapons from Serbia. The US Congress came within one vote of overturning that embargo. There was a tie in the Senate. Al Gore, on instructions from Pres. Clinton, voted against it. In the three years of genocide before Srebrenica, the Western attitude toward the Bosnian Muslims was, “What is wrong with these people? Why don’t they just die and leave us alone?”

Then the Serbs – Karadzic and Mladic – became overconfident. Being insane, sadistic, murderous thugs, they were not patient people. They felt constrained by the limits of their tacit agreement, and they went ahead with a large-scale traditional massacre. If they’d just massacred Bosnian Muslims the international community might have just stood by, but they also humiliated the Dutch blue hats, who stood around and watched as the Bosnian men were marched out of the “safe haven” and murdered. That was too much to swallow. The story was now on the front page and the international community had to rouse itself, just a hair, to impose the Dayton accords – something that could have been done two years earlier.

So Europe the US, and the UN were complicit in the genocide of the Bosnian Muslims. No surprise that an international court would whitewash the role of Serbia in that genocide.

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abb1 03.01.07 at 9:22 pm

So Europe the US, and the UN were complicit in the genocide of the Bosnian Muslims. No surprise that an international court would whitewash the role of Serbia in that genocide.

I can’t find the logic in this statement.

31

Lee Bryant 03.01.07 at 10:03 pm

katherine: I agree the aim is not to label everything as genocide or the term will lose its meaning, but Chris linked to the definition, and pointed out that the phrase “in whole or in part”

hidari: I get what you are saying, and sympathise with that position, but the fact is that the Bosnian genocide (distinct from the war that surrounded it) was a planned and logistically organised attempt to kill, remove and subjugate the non-Serb population that stood in the way of the establishment of an ethnically pure ‘Republika Srpska’ that has no precedent in Bosnian history and no logic geographically or economically. Organised mass killing with the aim of wiping non-Serb communities in certain areas of Bosnia. I think that fits the definition in the Conventions, even if individual massacres and indeed overall scale does not compare with other sad events, such as those you refer to.

daniel: unless they had an armed wing I am not aware of, the Eustonites are not relevant to the question of whether there was genocide in Bosnia, and whether Serbia was complicit in it.

Also, I think the ICTY evidence about Prijedor and Kozarac is quite clear about the intent to destroy the Bosniak community. In Kozarac, everybody was rounded up, many were tortured and killed, and everybody expelled before the town was burned. But the point is these events were part of a clear pattern and a plan. I don’t like that. Also, it is what I think the Conventions were about.

Aaron: what a nice surprise to see you here! It’s not so much that some people are mad about the facts – the facts are open to dispute for sure, but what matters here is (a) the charge; (b) the evidence, its presentation and the court’s ability to interpret it; and, (c) the legal process by which they decide what to take into account in making a judgement (e.g. was the talk of compensation and precedent-setting likely to push the court in the direction of “compromise”). I believe the events in question, although not the worst things that have ever happened, were genocidal according to the Convention’s definition, and I know how devastating they were to those who survived. So, having always believed the events of 1992, and later 1995, in northern and eastern Bosnia fitted the definition, I hoped the court would find that there was genocide, in the area now called Republika Srpska, and that Serbia was at least complicit in its commission through political, material and military involvement.

jr: It is true to say the policy began as containment, which was hardly consistent with their (theoretical) responsibilities under international law.

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novakant 03.01.07 at 10:04 pm

Could some of the ruling’s defenders elaborate what would satisfy them as conclusive proof of intent.

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dearieme 03.01.07 at 10:32 pm

How would you chaps characterise the driving out of the Tories after the American War of Independence? Or The Trail of Tears?

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Thomas Nephew 03.02.07 at 7:07 am

#1, daniel: “There isn’t a smoking gun linking the Serbian government to Srebenica, and everyone has known this for a while; for every piece of circumstantial evidence on one side, there is a piece of circumstantial evidence pointing the other way.”

(1) It shouldn’t have just been about Srebrenica, but about the whole war and how and why it was waged.

(2) Even if you agree with limiting the charge to Srebrenica, there is unequivocal, smoking gun evidence linking the Serbian government to the crimes in Srebrenica, including Ratko Mladic being on the Serb payroll, Slobodan Milosevic’s whole trial for, um, genocide, and, oh, (c) videotapes of Scorpion Serb paramilitaries killing victims.

Expletives deleted. This was an utterly shameful and disastrous ruling. The ICJ has done more to show how to dodge a genocide verdict while carrying one out than it has to prevent and deter such actions.

35

ejh 03.02.07 at 8:14 am

Could some of the ruling’s defenders elaborate what would satisfy them as conclusive proof of intent.

No. You can’t approach a real-life criminal trial as if it were a hypothetical. You can’t answer questions by saying “this is what would count as evidence if it existed, which it doesn’t”.

You also have to prove things in a court. Not just say “well, they were connected, so it’s obvious”. It’s not hard to connect the Belgrade government of the day with Srebenica, but that’s not the same as saying they commissioned it.

Really some of the critics of this verdict seem to me to want to overlook the necessity of proof in criminal trials, which, if you are talking about civilised standards of law and justice, is not they way to go about things.

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Daniel 03.02.07 at 8:53 am

I will go on the record as saying that I would regard the records of the Wannsee Conference in 1942 as being the paradigm case of evidence that would clearly be conclusive proof of genocidal intent. I wouldn’t say this is the minimum standard, but that is the answer to your question.

I’m cautious about commenting on the Trail of Tears, because I think I might have learned a quite partial version of the history when I was in Oklahoma. As I understand it, the particular Trail of Tears episode would be an example of an ethnic cleansing that was also a genocide, on the criterion of “imposing intolerable living conditions” in the Convention.

However, every single resettlement of Native Americans onto reservations was an ethnic cleansing, and I don’t think that every single creation of a reservation was a genocide – I know that some Native activists think this way, but I don’t think the opposing point of view is perverse. We surely wouldn’t want to say that the Highland Clearances were a genocide, would we?

Lee: I am not talking about “the Eustonites”. I’m talking about a specific interpretation of the genocide convention which is shared by you, Chris and most of the drafting committee of the Euston Manifesto. I’m referring to it in this way as a shorthand. Immanuel Kant doesn’t have an army either, but I reserve the right to use the phrase “Kantian ethics” if need be.

btw, I don’t understand this:

I hoped the court would find that there was genocide, in the area now called Republika Srpska, and that Serbia was at least complicit in its commission

That is very nearly what the court did find; that there was a genocide and that Serbia was complicit in it through failing to prevent it when it could have done or punish those who committed it when it could have done. It did not make the further finding that Serbia was guilty of the literal crime of “complicity in genocide” but it certainly didn’t exonerate Serbia and I don’t understand why Martin Shaw seems to be claiming in the first paragraph of his article that it did (he clearly doesn’t believe it did as he says so lower down the article).

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Chris Bertram 03.02.07 at 9:26 am

ejh’s last comment (first para) strikes me as quite absurd. Of course we can discuss what might count as evidence of the commission of a type of crime. In fact I’m sure that those teaching law and practitioners discuss this kind of thing often and that it is used to give practical guidance to those whose job it is to gather evidence (e.g police, local government regulatory officers etc). “If we are going to make a case that X is involved in an illegal trading scheme, we’ll need to have evidence like this, or this or this … etc.”

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ejh 03.02.07 at 11:34 am

Of course we can discuss what might count as evidence of the commission of a type of crime.

So we can, in the context that you describe. But in the particular context – that of an actual event which has been the subject of a court case – it strikes me as unreasonable, because we’re discussing hypotheticals in relation to a real event.

So we could say “well, if we had a fax from Milosevic to Mladic saying ‘please go and kill seven thousand Bosnian Muslims’ then that would serve as evidence”, yes. But we don’t have any such evidence, nor do we have reason to believe that such evidence exists or could exist.

I’m not sure I’m expressing my point well here, but what I trying to say is that I don’t see the value in speculating about hypothetical evidence relating to an actual trial that has taken place, unless we have reason to believe that such evidence exists (and was overlooked or neglected for some reason). There’s something about it that bothers me, which I think is the feeling that people are saying “well, this was genocide commissioned in Belgrade, it’s just that we can’t prove it” flavoured on occasion with the addition “and some people don’t want to see it”.

Whereas it seems to me that the verdict was right, on the evidence presented, and that I have no reason to think that evidence was neglected or overlooked or misinterpreted.

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Thomas Nephew 03.02.07 at 9:13 pm

Whereas it seems to me that the verdict was right, on the evidence presented, and that I have no reason to think that evidence was neglected or overlooked or misinterpreted.

You want a smoking gun? Incredibly, there literally is one. Here you go: a video of Serb paramilitary Scorpions executing Bosnian Muslims during the massacre. (skip to about 2:38). Not that it wasn’t abundantly clear in dozens of other ways as well; the trout in the milk, as it were. The evidence was and is stronger in our opinion than in yours. Or the ICJ’s, so in that sense, you’re right, you win, you have the same talent for willful blindness ICJ judges do. Meanwhile, they lose. I think they should have won, and you should have lost.

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ejh 03.02.07 at 9:27 pm

I have no intention of watching a snuff video for your benefit, nor for discussing anything with people who use terms like “wilful blindness” to smear people who disagree with them. If you wish to explain why you think your evidence constitutes proof of Belgrade’s commission of genocide, please have the courtesy to explain why you think so. Or please list some of the dozens of other ways” – since there are so many, you should have no difficulty doing so. Otherwise please be advised that assertion does not constitute evidence.

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Walter Tanner 03.02.07 at 9:32 pm

I’m not a Milosevic supporter, I just see that the biggest criminal in the whole farce was B. Clinton. This decision will tarnish the “good war” image and further expose Clinton as a war criminal just like his successor.

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abb1 03.02.07 at 10:52 pm

Yeah, really, that was kinda feeble, Thomas. Milosevic apologists everywhere and perverted ICJ persevere. But don’t give up.

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Thomas Nephew 03.02.07 at 11:32 pm

I provide you with evidence that you declare you will not look at. Since you don’t like my choice of words, what else should I call that?

The Scorpions were part of the Serbian police. They were killing Srebrenicans. There is a video. (They made it, because they were so very proud of themselves.) I assert that’s evidence. Ratko Mladic was on the Serb military payroll. I assert that’s evidence. As a dissenting judge pointed out, “When an official of the Republika Srpska sends a telegram to his superior in which the Scorpions are described as “MUP of Serbia” or “a unit of Ministry of Interiors of Serbia”, there is no reason to doubt the veracity of this statement.” I assert that’s evidence.

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abb1 03.03.07 at 8:56 am

The Scorpions were part of the Serbian police. They were killing Srebrenicans.

Shit happens:

Military sources familiar with the case said it appears that the soldiers in this unit at least believed their commander [Col. Michael Steele] had issued an order to shoot to kill all Iraqi men during this operation. http://www.pfcclagett.com/clagett_story.htm

Though, to be fair, Col. Steele was later reprimanded by his boss. For not reporting all the details of the operation.

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ejh 03.03.07 at 9:07 am

I provide you with evidence that you declare you will not look at.

Becuase I don’t particularly like to look at videos of people murdering other people and I don’t see that it’s necessary. What specifically would it tell me that I do not already know?

I assert that’s evidence.

But evidence of what? How is it evidence that this particular act was commissioned by Belgrade? This is the whole problem here, that some people are refusing to understand this point. Instead some of them (and only some) choose to bridge the gap by accusing others of refusing to see what is not there to see.

If, for instance, someone I don’t like is killed by a friend of mine, this doesn’t make me guility of commissioning the murder. If they use my gun to do it, it still doesn’t make me guilty of the murder, though I would quite rightly come under suspicion as a result. If I suspected they might carry out such a deed but chose to say nothing, this still doesn’t make me guilty of murder but it might well leave me vulnerable to charged of being an accessory. Even then, this would fall short of being proven.

That’s what courts of law are like, see. Or what they’re supposed to be like.

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Chris Bertram 03.03.07 at 10:44 am

Well ejh, I find it telling that none of your examples involve concepts like authority, chain of command etc. If troops supposedly under my command systematically carry out massacres over a long period, and if I must have known that they did, did nothing to stop them, but there’s no documentary evidence of a specific order from me, then that isn’t enough for ejh? Btw, is there documentary evidence of specific orders from Pinochet to murder people?

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ejh 03.03.07 at 10:54 am

Pinochet? I don’t know. It never went to court, did it? But this one did, and one should not assume that they are the same thing.

Of course I’m aware of concepts such as authority and chains of command. I’m also aware of the concept of “deniability”. I would suggest that the court was also aware of all these things and it is for this reason that it came to the verdict that it did: because there was sufficient evidence to establish one level of guilt but not sufficient to establish another.

Really, what is the problem here? Is it really all right to approach legal concepts rhetorically, with an “is this not enough for you”?

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Luc 03.03.07 at 12:07 pm

If it were all so easy the trial of Milosevic wouldn’t have been so complicated. But Del Ponte also didn’t have a slam dunk case against Milosevic on a genocide conviction.

So the problem of the Scorpions evidence is long known and this court says in the summary:

“Judging on the basis of materials submitted to it, the Court is unable to find that the “Scorpions” – referred to as “a unit of Ministry of Interiors of Serbia” in those documents – were, in mid-1995, de jure organs of the Respondent.”

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Lee Bryant 03.03.07 at 1:40 pm

In response to daniel (#36), I want to be clear about what I believe the events in question fall under the Genocide Conventions:

1. Intent:

There was a political plan for the establishment of Greater Serbia including a number of areas that had majority Bosniak populations. There was also a military plan based on the JNA’s RAM plan for Bosnia, which envisaged three corridors being created and joined to subjugate Bosnia. As it happened, the third of these (roughly from Gorazde through western Sarajevo to the southern part of Bosanska Krajina) did not succeed, partly because Gen. Kukanjac didn’t do it, and partly because the area from Sarajevo to Konjic resisted more strongly than anticipated.

Before the war, the JNA and Serbian MUP armed local Serb paramilitaries, and there is evidence that this was coordinated by Belgrade through organs such as the Federal Directorate of Supply and Reserves. At the same time, the local Serb Crisis Committees made their own plans for how they would “process” the non-Serb populations in strategic areas, which is how the locations of the camps were decided upon.

And then, of course, we have the bizarre figure of Karadzic, who in 1991 announced in the Bosnian parliament that moves towards independence would lead to “a Hell in which the Muslims might perish.”

2. Commission:

In 1992, you can trace the journey of Arkan’s Belgrade-based paramilitaries as they moved from Bijeljina, through Zvornik and down eastern Bosnia creating terror among Bosniak communities through massacres and killings as they went. The tactic was quite clear. They enter a town, kill Bosniaks and create an atmosphere of terror; then the local Serbs round people up; and, finally, the JNA would move in hold and stabilise the cleansed territory. This pattern was repeated throughout areas targeted for “cleansing.”

In north-west Bosnia, there was the Prijedor coup, the wiping out of Kozarac and the massacres such as Hambarine where some people tried to organise resistance. Camps were established at Omarksa, Keraterm, Manjaca, Trnopolje; more “official” MUP-run facilities were also set up in Banja Luka, such as at the police station.

Across to the north-east, in Brcko, similar activities took place in order to remove the Bosniak population of the city from the strategically important northern corridor.

Meanwhile, in Sarajevo, the brutal siege was underway and Serb forces tried in vain to cut the city in two and break its links to Konjic and Mostar.

In every case, if Bosniak communities were situated in areas regarded as strategically important to the plan for a Greater Serbia, they were wiped out, rather than just being expelled or subjugated.

3. Complicity:

It is unthinkable that the events described above could have taken place without huge amounts of material support, logistics, buses to transport those expelled, diggers to create mass graves, etc., and much of this came from or was organised by Belgrade. Then there is the role of the JNA pre-May 1992, which was clearly under Belgrade’s control at that stage and (arguably) long afterwards.

There are phone recordings between Karadzic and Mladic and Belgrade, there is the evidence of meetings, and crucially there is also the fact that Milosevic was clearly able to control his proxy forces even as late as Dayton, in order to win himself a deal from the United States.

Whichever way you cut it, Serbia was directly complicit in genocide according to the definition laid down in the conventions. You can make whatever comparisons you like with other situations around the world – and in many cases you might be right – but looking at Bosnia in isolation, based on the Conventions, the facts are clear.

The most bizarre thing about the ICJ judgement in my view is the implication that genocide was not taking place in 1992 or throughout the war, but suddenly ‘happened’ at Srebrenica in 1995. I thought the whole point was about intent. If so, did the judges think there was some kind of random ‘civil war’ going on for years and then suddenly the Bosnian Serbs decided they had to commit genocide against a single town? It makes no sense.

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Matt 03.03.07 at 8:59 pm

Lee Bryant said, “The most bizarre thing about the ICJ judgement in my view is the implication that genocide was not taking place in 1992 or throughout the war, but suddenly ‘happened’ at Srebrenica in 1995.”

Now, as I said above, I’ve not read the full decision of the court. One thing that becoming a lawyer taught me was that it’s pretty dangerous to talk very seriously about court decisions without reading them. (I pretty strongly suspect that most others commenting here haven’t read it either.) And, I know the history of the war less well than I’d like to to make any very strong statements about it. But to repeat what I’d said before, there’s obviously nothing at all incoherent about the idea called ‘bizarre’ here. Note that the desire to destroy your enemies in battle and to drive them from their homes and to capture their land, even to do this very brutally, is not genocide as considered by the law. It’s almost always _another_ crime or war crime, and the various courts that have considered the matter have generally found against Serbia on this. But why is it bizarre to think that what was a brutal civil war became, at some particular point, something even worse, a plan to _eliminate_ a group of people _as such_? That seems perfectly plausible to me. I don’t say it’s the right conclusion here since I don’t know enough to say. But, it’s surely not a crazy conclusion, especially given the standards of what has to be proven for a legal case. (Standards that are and, I think, should be, high.) Can anyone give examples from the actual court decision where they think the ICJ has, _in legal terms_ gone wrong? That would be something worth looking at.

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Lee Bryant 03.04.07 at 8:48 pm

Matt: I agree that in theory it is possible for a generalised civil war to take on genocidal characteristics, but in this case it was the other way around.

Essentially, the war was genocidal in character from the beginning, in the sense that the destruction of non-Serb communities was its aim, rather than a secondary result of the war. As it happened, Serb forces achieved the majority of their objectives in the first phase of so-called ethnic cleansing in 1992, and from 1993-1995 the war increasingly became a civil war. The only major objectives that remained for Bosnian Serb forces in 1995 were Gorazde and Srebrenica, where all those forced out of other eastern Bosnian enclaves were taking refuge. They couldn’t take Gorazde, and anyway it was likely that a peace deal could accommodate Gorazde remaining in Bosnian hands without causing a problem for RS. But Srebrenica had to be destroyed in the eyes of the Bosnian Serb leadership, partly for strategic reasons and partly to avenge the ruthless resistance of Naser Oric and his rag-tag army in the town.

That is the context, and this explains why it makes no sense at all to claim that genocide only came into play at Srebrenica.

Finally, for me, the question of what they got wrong in legal terms is basically irrelevant given that international law is so malleable and easily influenced by realpolitik and power. The ICJ had no precedents to work on, took sweeping judgements about the inadmissability of important evidence (see Andras Riedlmayer) and did not have access to evidence already seen by the ICTY that was being used to prove Milosevic’s guilt under genocide charges relating to Bosnia (see Edina Becirovic on this latter point). It is worth noting that one of the only previous judgements they had to use as a yardstick for evidence was the completely ineffectual 1986 judgement that the US was guilty of interference, attacks and unlawful actions against Nicaragua (acts that in common parlance we would now call terrorism).

What counts is reality, IMO, not whether the judgement was legally supportable.

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Matt 03.05.07 at 2:03 am

Thanks, Lee. I’ll try to read the posts you link to. Of course, ethnic cleansing isn’t itself genocide under the law, so to the extent that the aims of the Serbs in the early stage of the war was just to drive the Bosnian Muslims (and Croats) out of Bosnia, even if this meant killing them along the way, while they would be guilty of war crimes it wouldn’t be the crime of genocide. You’re of course right to say that “reality” is what matters, and the reality in Bosnia was undeniably awful. But courts _must_ apply legalistic standards. Maybe they have the wrong standards here, but then that means we should work to make others that protect the rule of law and legitimacy too.

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