Tuesday, February 27, 2007

The Day Justice Died and Nobody Noticed

Front page of the New York Times? No. Front page of the Washington Post? No. America Blog, Talking Points Memo, Daily Kos, Juan Cole? No.

Yesterday, for those who were able to find the news, the ICJ ruled that the massacre of 8,000 Muslim men in Srebrenica in 1995 was genocide, but that Bosnia wasn´t a responsible party. Apparently, no one cares that the International Court of Justice (ICJ) found that Serbia wasn´t responsible for the genocide of 8,000 Bosnian Muslims in Srebrenica.

It´s a curious ruling and has profoundly negative implications for future genocide prosecutions. At least through the ICJ. Other courts like the International Criminal Court, may have greater success in prosecuting state sponsored genocide. But, after yesterday´s ruling, it appears clear that the ICJ is not the place to prosecute states that engage in genocide.

It´s a complicated case and I´ll try to summarize it briefly.

Basically, when Yugoslavia broke up, Bosnia declared independence from the Republic of Serbia. This led to a so-called "civil war" in which Bosnian Serbs formed their own army (the Army of the Serb Republic) with the direct assistance from Serbia proper and, at the behest of Slobodan Milosovic and the Serbian government, proceeded to attack Bosnia and blockade the capital Sarajevo. Over the course of the war, significant genocide and "ethnic cleansing" occurred although only Srebrenica has been isolated as "genocide".

This war, which I mentioned is often referred to as a "civil war", really was a war of aggression by Serbia against Bosnia-Herzegovina. It really couldn´t have been a "civil war" because the state of Bosnia was internationally recognized as an independent entity from Serbia and, under the terms of international law, was thusly a seperate entity.

However, the Court found Serbia innocent on essentially two grounds. One, there was insufficient evidence that Serbia sponsored genocide. And two, Serbia has insufficient control over the Army of the Serb Republic (Bosnian Serb Army) to be found culpable of genocide. The Court did rule that Serbia was guilty of not acting to stop genocide, but that´s a fairly weak compromise.
A lack of Evidence?
Seriously? I mean, yeah, there weren´t exactly Nazi-style documents describing the best method for summarily slaughtering 8,000 people, but the world´s come a long way since 1942. As in, genocidal leaders are clever enough not to write down their intentions for fear of future prosecution. But come on. If a thief walks through a mall and steals 8,000 wallets in 5 hours will the cops ever say, "well, he stole but he didn´t have the intent to steal, it just happened." The argument that the actions proved intent was specifically rejected by the Court in a shocking miscarraige of justice.
In fact, the Court ruled that it was impossible to determine that Serbia had the intent to commit genocide since the Army of the Serb Republic was an "independent" entity. This is a fairly complicated and spurious ruling. If the US were to arm violent Sunni groups to fight the Shiites (oh wait, check, doing that), having full knowledge that those groups would be likely to commit genocide, and then not do anything to stop them, wouldn´t that be de facto sponsorship of genocide? Apparently not. Absent some type of documentary evidence showing that a government funded, trained, and directed a subsidiary army with the intent of committing genocide, then states won´t be found guilty, even if they were sponsors.
This is, without a doubt, a seriously high standard of proof that can basically never be reached. If international courts are going to use this ruling as precedent for future genocide trials, it is unlikely that there will be more convictions for genocide. In fact, this burden of proof calls into question the relevance of jurisprudence vis-a-vis state prosecution for genocide.
International law should serve as a deterrent and punishment for state action first and foremost. But yesterday´s ruling is essentially a guarantee that states won´t be punished for the crime of genocide, individuals that carry out those crimes will.
Insufficient Control
The second part of the ruling was that the Serbian government had insufficient control over the Bosnian Serb Army to be found culpable. This is equally spurious. While there was no "smoking gun" there was ample evidence that Milosevic and the Serbian military apparatus was directly in control of the Army of the Serb Republic.
First, Srpska (the actual name of the aforementioned republic) means "Serb" or "Serb Republic". This has caused some confusion between this small state and Serbia proper, but there can be no doubt that Republika Srpska saw itself as an extension of the Serbian State.
Second, Milosevic firmly established relations between Serbia proper and General Mladic in 1994. This move simultaneously linked the two dictatorial leaders while spurning the actual Bosnian Serb President. While documentary evidence linking the two in military strategy is difficult to impossible to locate, there is ample circumstantial evidence to demonstrate the point. For example, when Bosnia declared its independence in 1992, Mladic blockaded Sarajevo on the orders of Belgrade (i.e. Serbia).
Third, there is no doubt that Serbia knew what Mladic would do and didn´t stop him. The ICJ ruled to this effect yesterday.
The combination of this evidence leads one to the conclusion that Serbia had knowledge of and directed the genocide against Bosnian Muslims. In fact, nothing is more clear about this conflict than that statement. But for an international court of law, the evidence was insufficient to link the Serbian state with the Army of the Serb Republic.
This ruling is not only a failure of justice, it calls into question the relevance of the ICJ in terms of prosecuting genocide. Some have argued that the ICJ was organized to regulate disputes between nations and thus, it´s not the best forum for prosecuting a state for genocide. Perhaps they are correct. Perhaps the International Criminal Court is the appropriate forum for future prosecutions.
No matter. The reality is that for millions of Bosnians, justice wasn´t served. The victimization continued as the ruling exonerated those most responsible and legitmized the actions of the Serbian state during that era. For shame.


Post a Comment

<< Home

Political Favorites
Guilty Pleasures
My Global Position