We Read the ICJ’s Genocide Judgment So You Don’t Have To

by Julian Ku

OK, I admit I haven’t read all 351 pages of the ICJ’s judgment in the Bosnia Genocide case. This is a rich and potentially important decision. But here are some initial observations and reactions, along with (after the jump), some key excerpts from the ICJ’s opinion.

(1) The key headline holding is that Serbia (the state) is not liable for the genocide that occurred in Bosnia. But to get there, the ICJ had to first find that the Genocide Convention was intended to create state responsibility for genocide rather than simply require states to prevent and punish individuals who commit genocide. The ICJ (over some dissents) found that a State can be found in violation of the treaty when it commits genocide and that a State can be complicit in genocide as well.

(2) Although I wasn’t following it that closely, it looks like the attorneys for Bosnia never really came up with any hard evidence of Serbian/Yugoslavian governmental knowledge and direction of the genocide, specifically the massacre at Srebenica. If no such evidence exists, it suggests Milosevic might have won his trial after all, if he had lived. Or it suggests that there is some disconnect in what evidence was presented to the ICJ and what evidence would have been presented in Milosevic’s trial.

(3) Serbia was properly dressed down by the ICJ for failing to exert its control and influence to prevent the genocide. It was also slapped for failing to cooperate fully with the ICTY. And this seems like a fully reasonable conclusion. But although the ICJ tried to make this sound very serious, it is one thing to find a State is responsible for genocide and quite another to say that they did not do enough to prevent it. Serbians should feel somewhat vindicated. Of course, if some future case in the ICTY brings up new evidence, will the ICJ revisit its finding?

(4) Eric Posner has the most trenchant policy critique of the consequences of the ICJ’s attempt to resolve this case (read here). He warned, prior to the decision coming down, that it could reinforce hatreds and resentment in Serbia thereby undercutting attempts to reconcile the still hostile sides. I think he has a good point, and I wonder if the ICJ sensed this was a problem as well. By refusing to find Serbia liable for genocide itself, the ICJ has avoided attaching the kind of collective war guilt that is a serious future problem for the region. So from Posner’s perspective, this was probably the best possible outcome.

http://opiniojuris.org/2007/02/26/we-read-the-icjs-genocide-judgment-so-you-dont-have-to/

3 Responses

  1. Angels dancing on pinheads.

  2. Looks more like pinheads are doing the dancing.

  3. Good selection of excerpts, thank you.

    I have only really read the part on the Court’s jurisdiction and res judicata until now, but even that seems to be rather interesting, in that the Court employs a broader understanding of the doctrine than was previously known in international, or – to the best of my knowledge – domestic law. According to the Court (but not the dissenters), a proposition can be binding as res judicata even if a previous decision did not expressly mention it, but only logically had to decide it in order to arrive at its broad holding.

    In the present case, the 1996 judgment found that the Court had jurisdiction, but it had only to that end examined issues under the Genocide Convention, and not the question of the respondent’s access to the Court, which was relevant today (yesterday, in my time zone). Nonetheless, the Court decided that the 1996 judgment encompassed also this aspect of the Court’s jurisdiction, seeing as it had to pass not only the Article 36 (Statute) / Article IX (Genocide Conv.) threshold, but also find Articles 34 and 35 of the Statute satisfied before it could take on the case.

    I would be curious to know if anyone else finds this approach a bit odd (apart from the dissenting judges, obviously).

    I, for one, have discussed the issue on my blog, here.

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