The ICJ’s perverse judgement

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”

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.

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?

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’.

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.

(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.

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]

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.

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.

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.

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

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

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.

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.

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.

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

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.

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.

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.

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.

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.

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”?

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.

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.