The World Court's Wishy-Washy Genocide Decision

David Luban

This morning, the International Court of Justice (a.k.a. "World Court") released its disappointingly wishy-washy decision on whether Serbia bears state responsibility for genocide in Bosnia during the Bosnian war. A few preliminary thoughts. (Confession: this is based on the 18,000 word summary released by the ICJ – I haven’t had time to read the 350-page opinion.)

One piece of background information: This case has dragged on for fourteen years, largely because Serbia challenged the Court’s jurisdiction on the grounds that between the time Yugoslavia dissolved and the time Serbia reconstituted, the country wasn’t a party to the Genocide Convention or the ICJ’s jurisdiction. In 1996, the Court had already ruled that it had jurisdiction, and today the Court decides, eleven years later, that its previous decision was res judicata (meaning already decided, therefore binding). ("Congratulations, Mr. Jarndyce! You were right all along! Too bad about those lost eleven years, but the wheels of justice run slowly and all that. Stiff upper lip.") – In a separate opinion, the Jordanian Judge Al-Khasawneh argues with some heat that the incredible Dickensian jurisdictional squabbles were simply an attempt by Serbia to undermine the Court.

Second piece of background information: The whole subject of holding states responsible for international crimes is something of a third rail in international law. States don’t like to be accused of crimes – it offends against their sovereign dignity and majesty, and guess what? It’s states that make international law! All the international criminal tribunals after Nuremberg (Yugoslavia, Rwanda, the ICC, Sierra Leone, Cambodia) have allowed only individual responsibility – not corporations, not states. Nuremberg experimented with declaring entire organizations, like the S.S., to be criminal, but that experiment was a failure and no international criminal tribunal has attempted it since.

When it comes to non-criminal responsibility, the leading precedent for today’s case was the 1986 ICJ case between the U.S. and Nicaragua, over U.S. responsibility for the contras. There, the U.S. objected to the ICJ’s jurisdiction, and when it lost that decision – and subsequently lost the case on the merits – it stopped participating and in fact pulled out of the ICJ’s compulsory jurisdiction altogether. The Court’s cautious decision today may have been made in the shadow of Nicaragua v. United States.

Final piece of background information: The Genocide Convention defines genocide pretty narrowly. Genocide requires a specific intent to destroy a protected group, in whole or in part, as such. (Protected groups are national, ethnical, racial, or religious groups.) "As such" means "destroy them because they are who they are, not for any other reason." To show genocide, prosecutors have to show that a massacre was specifically intended to destroy the victims as a group and not, for instance, to grab their land, or as part of a military strategy, or to teach rebels a lesson. Without showing that specific intent, the massacre could still be a "war crime" or a "crime against humanity" – it could even be the crime against humanity called "extermination" – but it’s not a genocide. Prosecutors in the Yugoslav Tribunal have seldom prosecuted for genocide, because it's an uphill struggle, and other crimes are invariably easier to prove.

As I’ve argued in a recent article, the legal definition of genocide has come loose from what the word means to everyone other than a handful of international lawyers. The disconnect sometimes has bad effects. A couple of years ago, a United Nations commission concluded that Darfur isn’t a "genocide," because there was no evidence of specific intent to destroy the "blacks" in Darfur "as such." (As my article points out, the Report’s treatment of the evidence was shabby and possibly less than honest - see paragraphs 513-18 of the Report - but that’s another story.) The result was a lessening of the political heat to do something about Darfur. No surprise: when newspaper headlines said "U.N. clears Sudan of genocide," the casual reader probably thought that meant exoneration, not definitional quibble.

Today’s ICJ opinion was predictably cautious. On the plus side, it does find that states can be responsible for genocide (as if we didn't know that).

[Addition: Andreas Paulus points out in a comment that my original post neglected one other, very important, achievement of the opinion: the Court found that the duty to prevent genocide does not apply only within a state's own territory. In paragraph 183, it states that the Article 1 obligations "apply to a State wherever it may be acting or may be able to act in ways appropriate to meeting the obligations in question." Of course, it remains utterly unclear what "ways appropriate to meeting the obligation" to prevent genocide are. But at least the Court repudiates the idea that states have obligations to prevent genocide only in their own territory - that is, that they can stand idly by while a genocide is going on.]

As for the rest, essentially, the Court did the following: (1) it found inadequate evidence of specific intent to commit genocide for anything in the Bosnian war except the Srebrenica massacre. (2) That made it easy to find no Serbian government responsibility for genocide, conspiracy to commit genocide, or complicity in genocide, because insufficient evidence ties the Serbian government to the Srebrenica massacre. (3) The Court did find Serbian responsibility for failure to prevent and punish genocide, in violation of Article 1 of the Genocide Convention ("The Contracting Parties confirm that genocide, whether committed in time of peace or in time of war, is a crime under international law which they undertake to prevent and to punish."). This was in part due to failure of the government to capture General Ratko Mladic, the architect of Srebrenica, and turn him over to the Yugoslav Tribunal for trial. (4) It decided that the appropriate remedy is the least invasive one possible. The Serbian government must catch the Srebrenica bad guys and turn them over. No financial compensation is necessary, and Serbia doesn’t even have to give "a direction to provide assurances and guarantees of non-repetition."

Judge Al-Khasawneh, the Vice-President of the ICJ, dissented, and it seems to me that his dissent makes a whole lot more sense than the main opinion. He criticizes the ICJ for treating the evidence in a piecemeal, disconnected, myopic way, so that overwhelming evidence of Serbian support for the Bosnian Serbs’ program of violent ethnic cleansing, directed against Bosnian Muslims and Croats, doesn’t count as adequate evidence of specific intent to commit genocide against those groups, or even complicity. The domestic-law equivalent would be exonerating from a charge of complicity in a hate crime someone who buys guns, ropes, gasoline, and bed sheets for the local Ku Klux Klan, on the ground that there is not enough evidence of hateful motivation. Doesn’t it seem pretty clear that buying guns, ropes, gasoline, and bed sheets is evidence of complicity in whatever hate crimes the Klan commits?

One other noteworthy feature in the ICJ decision. The Genocide Convention requires states to prevent and punish the crime of genocide. One of the findings in the case was that even though the Genocide Convention doesn’t state in so many words that states are forbidden from actually committing genocide, that prohibition is implicit in the obligation to prevent genocide. Well, yes. Unbelievably, five of the judges dissented from that! It brings to mind an old quote from Thomas Reed Powell: "If you think that you can think about a thing inextricably attached to something else without thinking of the thing which it is attached to, then you have a legal mind." (Quoted on p. 270 of Fred Shapiro’s admirable Oxford Dictionary of Legal Quotations.) Heck, the way they read treaties, these five judges could get jobs with the Bush Administration.
Posted 10:57 AM by David Luban [link]