On Feb. 26, the International Court of Justice at The Hague released its judgment in the Case concerning the application of the convention on the prevention and punishment of the crime of genocide.
The case was brought by Bosnia-Herzegovina against Serbia and Montenegro. Bosnia-Herzegovina alleged the Republic of Serbia and Montenegro was responsible for violations of the Genocide Convention, for killings, rapes, ethnic cleansing, and other atrocities committed by alleged surrogates of Serbia and Montenegro against citizens of Bosnia-Herzegovina, especially Muslims.
This case was a byproduct of the break up of Yugoslavia and the subsequent conflict that ravaged Bosnia-Herzegovina, one of the post-breakup republics. When it declared independence in 1991, Bosnia-Herzegovina had roughly 44 per cent Muslims, 31 per cent Serbs, and 17 per cent Croats.
According to Bosnia-Herzegovina’s claim, following its declaration of independence (a move opposed by its Serb population), Serb political leaders subsequently declared their people an independent republic, which did not gain wide recognition internationally. In the resulting ethnic conflict that pitted Bosnian Serbs against Muslims, it is alleged in the case, the Republic of Serbia and Montenegro was supporting the Bosnian Serbs in the killings, rapes, and ethnic cleansing of Muslims. Thus, claimed Bosnia-Herzegovina, Bosnian Serb forces were surrogates of Serbia and Montenegro.
When the litigation at the World Court started in 1993, Serbia and Montenegro were one republic, but by February 2007, the two states had gone their separate ways, and Serbia assumed all the international rights and obligations of the former union. Hence, the judgment of the World Court encumbers only Serbia.
At issue is the responsibility of a state for violation of the international norms prohibiting the commission of genocide. The allegations of responsibility against Serbia related to incidents committed mainly in the regions of Sarajevo, Drina River Valley, Prijedor, Banja Luka, and Srebrenica.
To assess responsibility, the World Court had to consider whether the main ingredient of genocide had been established: the dolus specialis, or special intent of the perpetrator to destroy a racial, national, ethnic, or religious group in whole or in part as such a group. The court had to satisfy itself the events revealed the Bosnian Serbs who committed the acts harboured this intent. Only following such a finding in the actual perpetrator would the court proceed to inquire into whether their soi-disant principals, Serbia here, could be complicit in the genocide.
The court found that gross atrocities were perpetrated by Bosnian Serbs against Muslims. But it found in all but one that those atrocities amounted to war crimes, not genocide. The evidence failed to establish the requisite intent to destroy the Bosnian Muslims in whole or in part.
The one instance in which the court found genocide was the notorious Srebrenica massacre of July 1995. Bosnian Serb forces had massacred over 7,000 Muslim men following the takeover of a “safe area.” However, the court found no evidence to link that genocide to Serbia, either through direct perpetration or complicity.
But Serbia was not let off the hook altogether. The court next turned its mind to whether Serbia had failed in its duty to prevent the Srebrenica genocide, notwithstanding that it was not linked to the genocide.
According to the World Court, the duty of a state to prevent genocide is only one of conduct, not outcome. A state is only required to take all measures reasonably available to it in order to prevent genocide. There is no obligation to produce the desired result. A state would have failed in its obligation to prevent a genocide only if it manifestly failed to take all measures within its powers to prevent it. The court found there was sufficient closeness between Bosnian Serbs and Serbia that the Bosnians could have been influenced by the Serbs. There was no evidence, however, to show the Srebrenica genocide was clearly foreseeable to Serbian authorities.
Nevertheless, the deep-seated hatred between Bosnian Serbs and Muslims ought to have kept Serbian authorities alive to the possibility of a genocide. Therefore, Serbia should have brought its influence to bear on Bosnian Serb forces to prevent it. Having failed to show that it brought such an influence to bear, the court found Serbia failed in its duty to prevent the genocide.
Next, the World Court turned its mind to reparations. But since there was no evidence to show that the Srebrenica genocide resulted from the failure of Serbia to do its reasonable best to bring its influence to bear, the court felt reparations would be inappropriate.
This judgment is a welcome addition to the growing jurisprudence of international law about responsibility for genocide. There is a rich body of international jurisprudence on the subject mostly from the judgments of the international criminal tribunal for Rwanda and the former Yugoslavia. The jurisprudence of the ICTR and ICTY are distinguished, however, by the fact that they deal only with the criminal responsibility of individuals but not with the responsibility of states.
This is the first time that the World Court has pronounced upon responsibility for genocide. The World Court can only determine cases between states. In that vein, it is important not to lose sight of a crucial point of the ruling: the matter of clear distinction between criminal responsibility for genocide (attracting punishment) versus civil responsibility for genocide (attracting award of reparations). The World Court’s ruling was about civil responsibility and not about criminal responsibility of the state of Serbia.
International law has not evolved to the point of recognizing criminal responsibility on the part of a state. Indeed, such criminal responsibility would be undesirable. One argument against it in international law is the practical question of punishment. How do you punish a state found guilty of genocide? But there is a more fundamental philosophical concern. At the root of it is the understanding that a state comprises of a permanent population, a defined territory, and a government. It is hard to imagine a scenario where it will be just to say the entire population of a country is criminally responsible for an international crime.
It is crucial to understand that this judgment has not changed - nor did it set out to change - the fundamentals of international law, which do not recognize international criminal responsibility on the part of states. But the judgment has enhanced an understanding of how states or groups with claims of violations of international criminal norms must approach their claims.
Chile Eboe-Osuji is an international lawyer with Borden Ladner Gervais LLP. He also teaches international criminal law at the Faculty of Law, University of Ottawa.
