International Court Rules That Serbia is Not Responsible for Genocide

Serbia was not directly responsible for genocide during the war in Bosnia, according to the International Court of Justice.  In a long-awaited decision announced on February 26, the Court found that the Srebrenica massacre of 1995 was an act of genocide, but that there was not enough evidence to show that the Bosnian Serb fighters who carried out the killings were acting under the control or at the direction of Serbian authorities.

Nevertheless, the Court did not let Serbia off the hook completely.  It said that Serbian authorities had not met their obligation under international law to prevent and punish genocide, because they had failed to use their influence over the Bosnian Serb forces to try to prevent them from committing a predictable massacre, and failed to take steps to punish those responsible or hand them over to the Yugoslavia war crimes tribunal for trial.

The case has been widely seen as one of the most important to come before the International Court of Justice, which rules on disputes between states (by contrast, the Yugoslavia war crimes tribunal was set up to prosecute individuals for war crimes or other violations that they committed during the Balkan wars).  Under the Genocide Convention of 1948, the International Court has jurisdiction over disputes between states that are party to the treaty about whether one of the states is responsible for genocide or has otherwise failed to comply with the treaty’s provisions.

Because the Court’s jurisdiction in this case was based solely on the Genocide Convention, it did not have the power to look into whether Serbian authorities were complicit in other international crimes apart from genocide.  For this reason, this case was never going to provide the venue for a complete accounting of the responsibility of Serbian authorities for the crimes committed during the war in Bosnia—although undoubtedly some Bosnian Muslims were looking to it as an ultimate verdict on Serbian culpability—and it would be wrong to see the decision in this light. 

In international law, genocide is a specific and very narrowly drawn crime, involving the attempt to “destroy, in whole or in part, a national, ethnical, racial or religious group, as such.”  Proving genocide in any particular case involves establishing that those who carried out the crime intended to destroy at least a substantial part of a specific group, based on their identity as members of the group.  In this case, the Court stated that the group in question was the Bosnian Muslims.

Examining the war in Bosnia as a whole, the Court found “overwhelming evidence that massive killings in specific areas and detention camps throughout the territory of Bosnia and Herzegovina were perpetrated during the conflict,” and that the majority of the victims were Bosnian Muslims.  However, in almost all cases, the Court said there was not enough evidence to establish that the people who committed these crimes did so with the specific intent necessary to establish genocide.  These actions “may amount to war crimes and crimes against humanity,” the decision noted, “but the Court has no jurisdiction to determine whether this is so.”  Moreover, the Court said that it could not establish that the entire pattern of atrocities demonstrated a plan of genocide unless there was no other possible interpretation of the pattern of conduct.

However the Court did determine that the Srebrenica massacre of June 2005, when over 7,000 Bosnian Muslims were killed by Bosnian Serb forces and paramilitary groups after the fall of the United Nations-designated “safe area” of Srebrenica, qualified as an act of genocide.  In this, the Court closely followed the Yugoslav war crimes tribunal (formally known as the International Criminal Tribunal for the former Yugoslavia, or ICTY), which has already convicted two defendants of genocide-related charges for their part in the massacre.  The Court quoted and endorsed the ICTY Appeals Chamber in the Krstic case, which said that Bosnian Serb forces had “targeted for extinction the forty thousand Bosnian Muslims living in Srebrenica, a group which was emblematic of the Bosnian Muslims in general…The law condemns, in appropriate terms, the deep and lasting injury inflicted, and calls the massacre at Srebrenica by its proper name: genocide.”

Having endorsed the idea that the Srebrenica killings were an act of genocide, the International Court of Justice nevertheless stated that they could not be attributed to Serbia (or, to be precise, to the Federal Republic of Yugoslavia, effectively controlled by Serbia at that time), since they were not carried out by an organ of the state or under the direction or control of the authorities in Belgrade.  The Court acknowledged that the Bosnian Serb forces received “quite substantial aid of a political, military and financial nature” from Serbia that began long before the killings at Srebrenica and “continued during those events.”  But it said that all indications were that the decision to kill the adult male Muslim population of Srebrenica was taken by Bosnian Serb military leaders on the ground without any prior agreement with Belgrade, and that it could not be shown that Serbian authorities provided support to these forces “in full awareness that the aid would be used to commit genocide.”

The Genocide Convention not only makes genocide a crime under international law, but also requires signatory states to prevent and punish it.  The exact meaning of this obligation has always been disputed and one of the most significant parts of the International Court of Justice’s decision is its discussion of how far it extends.  The Court found that Serbia was responsible for failing to prevent the genocide at Srebrenica even though this took place outside Serbian territory, because it could have anticipated that there was a risk of genocide but “manifestly refrained” from using its influence over Bosnian Serb forces to try to avert it.   

Serbia was also found responsible for failing to punish genocide, because it had not cooperated fully with the Yugoslavia war crimes tribunal; in particular the Court said there was “plentiful, and mutually corroborative, information” suggesting that the Bosnian Serb military commander General Ratko Mladic, thought to be the man most responsible for the Srebrenica killings, had been on Serbian territory “at least on several occasions and for substantial periods during the last few years and is still there now, without the Serb authorities doing what they could and can reasonably do to ascertain exactly where he is living and arrest him.”

If Serbia had been found to have committed genocide, it would have been liable to pay compensation to Bosnia, presumably on a massive scale.  However the Court said that it did not think that compensation was an appropriate form of reparation in this case, since there was not a direct causal link between Serbia’s actions and the harm suffered by the Bosnian Muslims.  Instead the Court said that the declaration that Serbia had failed to comply with the Genocide Convention should give some satisfaction to Bosnia, and it also ordered Serbia to comply with its obligations to cooperate with the war crimes tribunal and in particular to take steps to transfer General Mladic to The Hague.

Related chapters from Crimes of War: What the Public Should Know:

Bosnia

Genocide

Persecutions on Political, Racial or Religious Grounds

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