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.

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.

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.

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.”

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”?

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.

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

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.

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.

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.