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