Transitional Justice Forum

Bosnia vs. Serbia/Montenegro at the ICJ

Posted by Helena Cobban at 15:02 | TrackBack

The Hague-based International Court of Justice (ICJ) today opened its proceedings in the case that Bosnia and Herzegovina have brought against Serbia and Montenegro for the role the latter (and their antecedent state, Yugoslavia) played in the genocide of Bosnian Muslims during the wars of the 1990s.

This is the first time the ICJ has ever heard a genocide case. The ICJ is a "civil" court in which only states can be the plaintiffs and defendants. This makes it different in key ways from the UN's ad-hoc tribunals and all the other courts around the wortld that have until now heard genocide cases. In all those other proceedings, the case was a criminal case, and it was brought against one or more named individuals.

Bosnia/Herzogovina first filed its case with the ICJ Registry in March 1993, and it has taken this long for the case to be heard. This document from the ICJ details what has happened to the case in the interim.

A team of reporters from the Institute for War and Peace Reporting (IWPR) has compiled a lengthy and wide-ranging "backgrounder" article about the case, which is available here.

One point these reporters make is that at one level it may be easier for the judges at ICJ to reach a finding of culpability for genocide than it has been for judges in the criminal courts-- primarily because the required standard of prook at ICJ is only a "preponderance of the evidence" rather than, as at a criminal court, proof "beyond a reasonable doubt."

In another respect, however, it may be harder at ICJ. This is because in nearly all cases a finding of genocide requires a clear finding regarding the intentionality of the person accused: namely that he not only committed certain exterminatory acts but also that he committed them with the intention to exterminate in whole or in part the membership of a group of one of the designated types (e.g., religious, ethnic, national, etc.) But how, some of those quoted by the IWPR reporters ask, can this intentionality be established in the case of a state?

The reporters write:

It seems clear that attempting to prove that Yugoslavia, at a state level, intended to destroy at least part of the non-Serb population in Bosnia will be a challenge for the Sarajevo lawyers.

But legal observers have told IWPR that it is in fact possible to establish state responsibility for a crime like genocide precisely by looking at the actions and mindsets of senior officials, irrespective of whether these were supported or even known about by the population as a whole.

“People are represented by their government,” said Judith Armatta of the Coalition for International Justice, CIJ, adding, “When the state commits a wrong — through those exercising state power, the state is liable whether or not its population approved.”

The reporters say that some-- but very significantly, not all-- of the evidence produced during the genocide cases at the ICTY will be available to the lawyers and judges in the ICJ case. They quote genocide expert William Schabas-- whose contributions to TJF we are still awaiting here!-- as saying that the displacement of large numbers of non-Serb individuals from the Serb-dominated parts of Bosnia might have shown an intent for ethnic cleasing, but not necessarily for genocide.

The reporters touch on many intriguing aspects of this new case, including the question of whether finding the whole state (or states) of Serbia and Monetnegro guilty of the genocide in Bosnia/Herzogovina might-- and especially in the event the judges should award hefty damage payments against Serbia and Monetenegro-- constitute an unhelpful form of collective punishment against the people of Serbia and Montenegro. They write:

The prospect of reparations have also helped to spark debate in human rights circles as to whether cases like this — in which the state of Serbia and Montenegro itself stands charged with genocide and the population as a whole might have to shoulder compensation payments — could reinforce perceptions of collective guilt.

It has long been one of the ICTY’s stated aims to battle such perceptions by finding and punishing the actual individuals responsible for atrocities.

“Some would argue that it is not beneficial in the long run to be moving in a direction that talks about collective responsibility versus individual responsibility,” said [Mark Ellis, a Balkan expert and director of the International Bar Association.]

But he added that while he understood where that opinion stemmed from, he didn’t subscribe to it himself.

Anyway, that's a well-researched, very informative report from IWPR. (The IWPR website also has a wealth of other material available about the proceedings at the ICTY-- here-- and an interview with the new ICJ President Rosalyn Higgins, here.)

The ICJ's schedule of when the various open hearings in this case will be, between now and May 9, is available here.