More on the Missing Evidence in the ICJ’s Bosnia Judgment

by Julian Ku

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.

4 Responses

  1. This is no surprise, the ICJ did the same thing in the Nicaragua case ….

  2. The Voices on Genocide Prevention Podcast from the United States Holocaust Memorial Museum’s Committee on Conscience had a very interesting podcast on this last week. Jerry Fowler interviewed Diane Orentlicher, professor of International Law at Washington College of Law at American University. It’s worth listening to (as are all their podcasts).

  3. And now I see that Professor Orentlicher is quoted in the Times article. Thanks for posting the link to the article – I’ve only recently begun reading the Times again now that they’ve opened up Times Select to .edus.

  4. I maybe the only one – but I don’t think the “missing evidence” really undermines the verdict in this case.


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