By Ruth Wedgwood, a professor of international law at the School of Advanced International Studies at Johns Hopkins University (THE NEW YORK TIMES, 12/03/07):
EVEN from the grave, Slobodan Milosevic roils the international system. When he was alive, his violence in the Balkans required NATO to intervene twice. He swaggered on the stage of the Dayton peace negotiations. And even after he was bundled off to a United Nations court to stand trial on charges of genocide, war crimes and crimes against humanity, Mr. Milosevic tried to convert his criminal defense into a political rant to be shown nightly on Serbian television. The trial meandered for four years, and both the presiding judge and Mr. Milosevic died before a final verdict could be returned.
Now the skeleton’s waltz has turned one more time around the dance floor. This round brings us the ruling of the International Court of Justice, in a civil suit that should never have been brought if its result was to be so meager.
In 1993, Bosnia sued Serbia in the International Court of Justice, sometimes known as the World Court, for planning, abetting and committing genocide in the Bosnian conflict. Bosnia argued that the Serbian militias’ sniping and bombardment of civilian enclaves, torture and assassination of detainees, and ultimately, slaughter of more than 7,000 Muslim men and boys at Srebrenica, amounted to genocide.
Last month, the court dismissed Bosnia’s case on almost all counts. The judges sitting in Andrew Carnegie’s peace palace in The Hague held that the Serbian campaign of violence and ethnic cleansing against Bosnian Muslims could not constitute genocide. The only actionable instance of genocide, said the court, was the wholesale execution of prisoners at Srebrenica in 1995, and even there, Serbia was not adequately implicated in the crime’s commission.
This is a remarkable result. It’s true that Srebrenica woke the West from its stupor and brought NATO military action. But the ethnic conflagration had already raged for three years, with countless acts of nationalist violence aimed at expelling Muslims from the north, south and east of Bosnia. Yet the International Court of Justice shrinks from recognition, failing to explain why the deliberate slaughter of civilians in the riverside town of Brcko in 1992, or the torture and execution of Muslim civilians in Foca, were legally different in kind from the Srebrenica murders.
The court does lay one misdemeanor at Serbia’s doorstep: Belgrade failed to take steps to “prevent” the genocide at Srebrenica. For this, the court says, no damages are due. But that passive fault fails to account for Belgrade’s robust program of financing, equipping and supporting criminal militias like Arkan’s Tigers and the Gray Wolves, as well as the forces that specialized in leveling Muslim villages.
The court’s judgment has broad implications. It amounts to a posthumous acquittal of Mr. Milosevic for genocide in Bosnia. Though he planned to divide the country in two, in a scheme devised with Croatia’s president, Franjo Tudjman, and engineered the strategy of violent ethnic cleansing, the court concluded that this did not amount to a campaign to destroy the ethnic group of Bosnian Muslims in whole or in part, for he was just pushing their reduced numbers somewhere else. As a law student might suppose, it will take years of study to understand how that could be true.
Worse yet, by saying that only the Srebrenica massacre amounted to genocide, the International Court of Justice limits the charges that can be effectively brought against the Bosnian Serb leaders Radovan Karadzic and Ratko Mladic, if Belgrade at last allows them to be arrested.
It is hard to say why the court did not step back from these dire consequences. But there were both technical missteps and political snares in its judgment.
First, the World Court rejected the standard of vicarious liability used in the United Nations criminal tribunal for the former Yugoslavia. In applying the Geneva Conventions to the Bosnian fighting, the criminal court early concluded that Belgrade’s support was enough to make major portions of the conflict into an international war.
But the International Court of Justice chides the United Nations criminal court for offering an opinion on an issue of “general” international law like state responsibility and, despite more than 10 years of settled criminal case law, rejects the criminal court’s conclusion. This sibling rivalry between international courts has been gently called “fragmentation.” It does not bode well for any coherent jurisprudence.
The World Court also insists that unless Belgrade gave “direct orders” for particular operations or the Bosnian Serbs were “completely dependent” on Belgrade, there is no liability at all. This will be a surprise to scholars of ordinary tort law, who are accustomed to supposing that responsibility for wrongdoing can be shared.
Though the court claims to be acting on the basis of a 1986 decision in a case pitting the United States against Nicaragua, the law has moved on since then. Indeed, the court’s lackadaisical standard is at odds with United Nations Security Council Resolution 1373, passed in the wake of Sept. 11, which says that no state has a right to provide any intelligence, logistics or financing to terrorist activities.
Second, the International Court of Justice applies the demands of criminal proof to a civil case. The judges insist that even for civil liability, proof against Belgrade has to be “fully conclusive” and “incontrovertible,” with a level of certainty “beyond any doubt.” This standard is well known when the jail door will shut, but it exceeds the demands of civil liability. And in trying to meet this standard, the court declines to draw any adverse inference against Belgrade, even though the documents it turned over to the court were heavily redacted.
Third, the International Court of Justice has a small jurisdictional embarrassment. After the NATO military intervention in Kosovo, Serbia went to the United Nations war crimes prosecutor to complain about NATO’s war fighting methods. The prosecutor concluded that there was no basis for a criminal investigation of NATO. Serbia then sued various NATO states in the International Court of Justice. These suits were dismissed on the ground that Yugoslavia was no longer a member of the United Nations and hence had no plaintiff’s right of access to the court.
But reasons cut both ways, argued Belgrade, and disqualification as a plaintiff could also protect Serbia as a defendant in Bosnia’s civil action. Lingering doubts about jurisdiction may have diminished the court’s willingness to make more rigorous findings of liability in the Bosnian genocide case.
To be sure, the International Court of Justice has held that the Genocide Convention requires Serbia to surrender criminal suspects like Mr. Karadzic and General Mladic, who are wanted by the United Nations war crimes tribunal. But this is a redundant finding, for the legal authority of the Security Council already requires that surrender. It is not a substitute for clarity about Serbia’s role.
It is all to the good that Serbia may soon rejoin Europe. But it does not facilitate that reunion to disguise what happened in the past.