On the International Court of Justice Decision
on Genocide in Bosnia
By Peter Lippman
Various people have asked me what I thought of the International Court of Justice decision of February 26th on the lawsuit by Bosnia against Serbia. As with so much concerning Bosnia and the war, this is complicated. It's complicated because law and politics complicate things. It's also complicated because in any search for justice, there can never be "absolute justice," but that's what people naturally want.
I. The Decision
Briefly, the ICJ decided that Serbia (taking the place of Serbia-Montenegro or the 3rd Yugoslavia, no longer existent) was not guilty of genocide in Bosnia, nor was it guilty of complicity in genocide. However, the court did find that Serbia was guilty of "failure to prevent genocide," therefore in violation of the 1948 Genocide Convention. It further found that Serbia was guilty of failure to cooperate with the Hague war crimes tribunal (ICTY), and called on Serbia to fulfill its commitments in that realm (such as handing over Ratko Mladic). The finding also established that genocide was committed in Bosnia, but only in Srebrenica, and not throughout the rest of the war; also that it was institutions of the Serb-controlled entity, the Republika Srpska (RS), that were responsible for this genocide.
This was a poor decision all around. There's much that's simply wrong. But while looking at what's wrong with the decision, we also have to look at the way it's to be interpreted, its effects on regional cooperation and inter-ethnic relations in Bosnia, and the meaning of the word "genocide."
The word "genocide" has long since been devalued, being generally used to mean "the worst thing possible." If everyone from elementary school students to neighborhood associations use the word this way, it loses meaning.
On the other hand, when the court now applies criteria for establishing genocide so strict as to make that establishment impossible, that also obviates any real meaning of the word. At this point we should ask, "How much difference then does it make, whether we use the buzz-word genocide, or something else, when crimes against humanity, violations of international law, and atrocities, all already describe the extremes of unacceptable behavior by a state or any other group?" Can there be such a lesser conception as Serbia "only" being guilty of supporting massacres?
The main criterion found missing from the proof needed to convict Serbia of genocide, based on the wording of the 1948 Convention, was "intent." The relevant wording of the Convention includes the "intent to destroy, in whole or in part, a national, ethnical, racial or religious group." The government of Bosnia was apparently not able to supply concrete proof of Serbia's intent, which would have had to take the shape of something like a letter from Milosevic to Mladic to kill Bosniaks (Bosnian Muslims) as a group, not just in order to remove them from a particular territory. There may well be proof that satisfies these standards, but the government of Serbia has not shared all its archives, and not even all the material evidence at the disposal of the ICTY was made available to the ICJ.
There is plenty of other proof, but it requires a way of seeing, and perhaps political will, that were also not available to the ICJ. It goes like this:
--The Serbian government provided the Bosnian Serb army (VRS) with crucial funds and logistical support from the beginning of the war to its end (actually, for many years after its end). This is well-documented. It is arguable that for much of the war, the VRS was a wing of the Serbian army. See
--The Bosnian Serb army systematically committed massacres directed at Bosniaks and other non-Serbs from the beginning of the war to the end. It has been argued that the purpose of these massacres was to clear territory, not to eliminate the "protected group" (here is where legalism becomes atrocious). But in any case, the way to conquer territory involved eliminating part of the protected group. This too is well-documented in, for example, Norman Cigar's book, Genocide in Bosnia: The Policy of Ethnic Cleansing and many other places.
--The drive for expansion of territory controlled by Serbs was the result of a movement of extreme nationalism that began to be promoted by intellectuals and politicians in Serbia in the mid-1980s, and was exploited by Milosevic when he found it helpful to build and maintain his power base. The disintegration of former Yugoslavia and polarization of political forces into extreme nationalist camps, certainly in Bosnia as much as anywhere else, was a direct result of the belligerence of Milosevic's nationalist movement. This polarization led to the atrocities mentioned above, of which the Bosniaks were the principal (though not the only) target. The amplification of extreme nationalist rhetoric and the trajectory of the movement are also recorded extensively. (See, for example, The Destruction of Yugoslavia: Tracking the Breakup 1980-92, by Branka Magas, and Broken Bonds: The Disintegration of Yugoslavia by Lenard J. Cohen, among many other sources)
Given that the extremist movement started in Serbia and its Bosnian extension was made possible by the government of Serbia (then Yugoslavia), it doesn't require a leap of logic to conclude that Serbia was responsible for genocide in Bosnia. One clear illustration of this is found in Richard Holbrooke's To End a War, in which he describes meetings with Milosevic, wherein Milosevic has ready contact with Mladic and Karadzic, and is able to twist their arms to arrive at agreements. This relationship between the Serbian ruler and the Bosnian Serb leaders lasted until the end of the war and beyond.
Furthermore, the ICJ decision states that Serbia had "influence," but not "control," over the army of Republika Srpska and should have been able to surmise that there could be genocide in Srebrenica. The court concluded that given these conditions, Serbia should have prevented genocide and failed to do so. I'm not an expert in war law and conventions, but I'm aware that when a war crime is committed, a commander can be found guilty, even if he had not been present, of "command responsibility." The Serbian government, by the same token, should have been found to have responsibility for the atrocities in Bosnia.
The people this decision hurts most are, naturally, the survivors of the genocide. One widow from Srebrenica said, "We have been murdered again." Others spoke of betrayal, saying the decision proves that justice does not exist, and that "denial is the final stage of genocide." (See end-note.)
Nor does the decision particularly help the Serbs as a people, even though their politicians eagerly claimed a victory. In fact, leaders on all sides were ready to claim victory and instrumentalize the mixed verdict. This would have happened in any case; if found guilty of genocide, Serbian leaders would have summoned their mythology of victimization (in mentioning this, I’m not implying that there has been no victimization of Serbs) in order to reinforce their own political standing by circling the wagons and pointing to a "politicized court" as inherently biased against Serbs. Instead, the ICJ finding is a convenient way for Serbs to buttress their self-exoneration and avoid responsibility for war crimes.
On the other side, Bosniak politicians after the ICJ decision hastened to call for the abolition of the Republika Srpska. The logic is that since the ICJ finding allows that the VRS committed genocide, therefore the RS is an entity created by genocide, and as such must be abolished. This is an appealing logic but, while it could constitute a large step towards the "absolute justice" mentioned above, it is all but impossible to achieve at this point. Sadly, the main proponents of this line, including Haris Silajdzic (Bosniak member of Bosnia's three-part presidency) are much more motivated to reinforce their own popularity than to establish truth, justice, or reconciliation in Bosnia. The response to this discourse on the Serb side is to deny "collective guilt" for war crimes and, eventually, to call for a referendum to secede from Bosnia.
The ICJ decision does point to the Republika Srpska as guilty of genocide in Srebrenica, drawing on and backing up earlier findings of the ICTY. This halfway decision, leaving out other instances of genocide in Bosnia, nevertheless understandably makes the leaders of that para-state uncomfortable. Their prime minister, Milorad Dodik, responds by saying what he knows his constituency wants to hear, that genocide was not committed in Srebrenica -- or that the RS was not responsible for whatever did happen, only "some elements of the army" were responsible.
It's a stretch to think that a guilty conviction would have helped Serbs initiate a process of "de-Nazification" (examination of Serb responsibility for war crimes) but the present decision certainly won't help. There will be continued anger on the part of traumatized victims, and tension among ethnicities in Bosnia. Some commentators say that "history will decide" what really happened, and where the real responsibility for the crimes lies. But court decisions are an important part of the historical record, and that's why the ICTY is so important. It is a tragedy that that court botched the trial of Milosevic by allowing it to become, predominantly, a stage for his grandstanding to the folks back home. This allowed the proceedings to drag on for four years, until Milosevic died.
Zeljko Komsic, Croat member of the Bosnian presidency, says, "I know what happened, and I know what I will teach my children." But he won't be teaching everybody's children.
People in the West who have cared a lot about the fate of ex-Yugoslavia have desperately wanted Bosnia to be put back together. For recovery and reconciliation to happen, truth and justice are not platitudes, but necessary prerequisites. Given what's happening now, we should think about what happens when a vast crime is committed and there's no justice. There are, of course, plenty of examples. Let's take Poland. Not only were most of the Jews (and vast numbers of Poles) exterminated in World War II, but the country was also made empty of most Ukrainians, Roma, Byelorussians, Tatars, etc. For the first time ever, Poland was all but ethnically homogenized. Now anyone who knows some of this history, and goes to Poland, cannot quite be a tourist, because of the ghosts that abound. No apology, no reparation, no return, no justice, and no reconciliation have taken place in Poland. But will people live "normally?" Will they be healthy, spiritually? I doubt it. The legacy of crime on a large scale does not disappear, but manifests itself in fear, hate, paranoia, guilt, and spiritual impoverishment -- especially the latter.
What goes around comes around, and it will be coming around for a long time in Serbia and Bosnia.
As with practically every problem in Bosnia, ultimately the real solution in the search for justice is for ordinary people on the grassroots level to organize and work on educating their public, and there's more of this these days than there was before the war or soon after. Unfortunately, this has different dynamics in a small country historically buffeted by surrounding powers than it does in the United States, because the forces that decide people's fate in Bosnia are, historically, far away and hard to affect. But it's the only hope.
What is, in fact, the last stage of genocide? There is so much that takes place in the course of the attempted extermination of a people and their culture that probably simply can't be encoded in law: the extermination of a people's spiritual roots in Bosnia has encouraged a kitschy fundamentalist version of Islam; this could be last stage of genocide. Or what about the boutique-ification of a culture, such as the sentimental/New Age purveying of Native American customs, and the Jewish restaurants in Krakow run by non-Jews? How much can international lawyers know about these things? Only the ordinary people, survivors who lived their culture, can sense this.
Taking the discussion of the results of genocide further, something else on a par with that crime took place in Bosnia, but for which there's no international law: the destruction of Bosnian multi-culturalism. At least for now, Bosnia and Herzegovina as a multi-ethnic society no longer exists, and there are attempts in many communities, on all three sides, to erase the remnants of the rich mix of cultures that was Bosnia's historical treasure. Bijeljina, where the street names have been changed and even the regional museum has been "cleansed," is a good example of this. Bijeljina now feels like a suburb of Belgrade. More was destroyed than Bosniak communities; some Bosniaks (especially part of the political infrastructure), in response to their victimization by extremists, now participate in shunning multi-ethnicity and co-existence. Those who try to hold on to a vestige of co-existence stand out from the norm and look unbalanced. The ICJ decision, increasing the anger on the side of victims and exonerating the guilty, doesn't help any of this.
For some material on genocide, see the following links: