More on the Missing Evidence in the ICJ’s Bosnia Judgment
In another sign of how slow the mainstream media moves sometimes, the NYT has an article today discussing an issue that readers of this blog learned about nearly a month ago: the ICJ’s strange reluctance to demand access to crucial Yugoslav/Serbian government documents in reaching their judgment in the Bosnia Genocide case. The ICJ’s failure to consider such evidence, the NYT points out today (and I and others pointed out last month) may have been crucial to the ICJ’s finding that Serbia did not bear direct responsibility for the Bosnian genocide. I think that this judgment was, as a consequentialist matter, a positive thing. But I do find the ICJ’s somewhat dilatory fact-finding a bit odd and problematic.
In my (admittedly brief) time in private practice in the U.S., I came to deeply appreciate the importance of “facts” to the resolution of legal disputes. Contrary to what I learned in law school, grinding out the “facts”, namely digging up the evidence, will almost always be more important to winning a case than any clever brief writing. That may have been the case here, and more is the pity, because developing a credible, accurate, and full factual record of the Bosnia genocide would have been one of the most important consequences of an ICJ judgment. It appears that no such record was created here.