Did the ICJ Turn a Blind Eye to Evidence of Serbia’s Guilt?

by Julian Ku

As I pointed out last week, there was an odd disconnect between the International Court of Justice’s finding that Serbia did not commit genocide against Bosnia and judgments of the International Criminal Tribunal for the former Yugoslavia finding responsibility for genocide at the highest levels of the Serbia/Yugoslavia government. The IWPR, which has great coverage of this issue, further develops this point in this recent article.



In particular, they point to a June 2005 decision by an ICTY chamber finding sufficient evidence of “. . . a joint criminal enterprise, which included members of the Bosnian Serb leadership, the aim and intention of which was to destroy a part of the Bosnian Muslims as a group, and that its participants committed genocide in Brcko, Prijedor, Sanski Most, Srebrenica, Bijeljina, Kljuc and Bosanski Novi” that it permitted Milosevic’s trial to continue.



This ICTY decision was based in part on records of meetings by the Supreme Defense Council, which directed Serbian government policy during the relevant period. These records are held by the ICTY but the ICJ did not review these records, at least in full, during its recent decision. Indeed, the IWPR suggests the ICJ did not even request this evidence. Why not?



Would it have made a difference? It is very difficult to say. It does raise questions about the ability of the ICJ to conduct sophisticated fact-finding under Article 48 of its Statute (The Court shall “make all arrangements connected with the taking of evidence”). Or perhaps more fodder for Bosnian suspicions of the political nature of the ICJ decision?



I actually think the ICJ’s caution and restraint here with respect to the evidence is a good sign that it is not willing to swallow whatever evidence is floating out there in its rush to make itself relevant. But the fact that key pieces of evidence remained unconsidered also reminds us that the ICJ’s judgment is far from the last or even the most authoritative word on this subject.

http://opiniojuris.org/2007/03/11/did-the-icj-turn-a-blind-eye-to-evidence-of-serbias-guilt/

One Response

  1. The ICJ’s decision not to pursue the Serbian defense records should be described as an act of willful ignorance rather than one of “caution and restraint”. The latter would follow from the court’s due consideration of a potentially relevant piece of evidence. The court’s failure to obtain this evidence or to weigh properly Serbia’s refusal to deliver it could not possibly be a “very good sign”. Indeed these failures are quite problematic, particularly when coupled with the court’s unwillingness to piece together the individual events of the Bosnian war into a coherent, larger narrative as the ICTY has done. At best, these failures suggest that the court suffered from unfortunate inability to understand the Bosnian war as something other than a remarkably coincidental series of atrocities. At worst, they impugn the court’s impartiality. Certainly, Bosnians will be drawn to the latter conclusion – and one could hardly fault them for thinking otherwise. They certainly remember Karadzic’s public threat to the Muslim members of the Bosnian parliament in the spring of 1992 that if they did not abandon their desire for independence, they “will […] perhaps lead the Muslim people into annihilation because the Muslim people cannot defend themselves if there is war.” How prescient. Nor will they forget Karadzic’s efforts – executed with money from Serbia’s purse, men and munitions from Serbia’ army, and the enthusiastic support of Serbia’s leaders – to make good on his promise. From that perspective, one could hardly fault Bosnians for thinking it a bit suspicious that the court chose to focus on the notion the that Serbs did not necessarily need to commit genocide in order to create a Muslim-free state rather than the spirit in which the Pan-Serbian experiment actually was undertaken. It is precisely that spirit (alive and well in the Bosnian Serb Republic and in Serbia proper) that causes the open celebration the war criminals and reduces the differences between Srebrenica, on the one hand, and Brcko, Prijedor, Sanski Most, … Bijeljina, Kljuc and Bosanski Novi”, on the other, to a merely quantitative level.

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