Institute for War and Peace Reporting | Giving Voice, Driving Change

Genocide Acquittal Provokes Legal Debate

ICJ ruling prompts claims that the standard of proof required was too high.
By Caroline Tosh
Legal experts have questioned the decision of the UN’s highest court to clear Serbia of responsibility for the massacre of some 8,000 Muslim men and boys in 1995.

The judgment of the International Court of Justice, ICJ - which found that genocide had taken place at Srebrenica in 1995, but absolved Serbia of responsibility for this - has sparked accusations that the standard of proof required was too high.

There is also concern that the failure of the ICJ to establish that Belgrade controlled the Bosnian Serb army, VRS, and paramilitary forces could prove a setback for future ICTY trials.

While the judgment of February 26 found that Serbia “was making its considerable military and financial support available” to Republika Srpska, RS, it failed to find that Serbia had “effective control” over the VRS and paramilitary forces behind the massacre.

It also dismissed Bosnia's claim that the pattern of atrocities against Muslims and Croats, committed over many communities, over a long period, was sufficient to demonstrate dolus specialis or special intent to destroy the group, as required by the Genocide convention.

But judges did find that Serbia violated international law by failing to use its influence to prevent genocide.

They also said Belgrade failed in its obligation to punish those allegedly responsible by not cooperating with the Hague tribunal, by arresting war crimes fugitive Ratko Mladic.

The court dismissed Serbia’s challenge to its authority on the grounds that it wasn’t party to the court when Bosnia launched the lawsuit 14 years ago, and affirmed its jurisdiction under article nine of the convention.

It rejected Bosnia's claim for reparations, on the grounds that it was not shown that genocide would have been averted if Serbia had tried to stop it.

But Judge Antonio Cassese, the first president of the Hague tribunal, has attacked the judgment, saying the ICJ’s decision demanded an “unrealistically high standard of proof for finding Serbia to have been legally complicit in genocide”.

In an article in the Guardian on February 27, 2007, Cassese castigated the court’s demand for proof that Serbian officials sent Mladic specific “instructions” to commit genocide - evidence he said that would “obviously” never be found.

“Why was it not enough to prove that the Bosnian Serb military leadership was financed and paid by Serbia and that it was tightly connected to Serbia's political and military leadership?” he asked.

Cassese argued that the ICJ's decision that Serbia is responsible for not having prevented genocide in which it was not complicit “makes little sense”.

Dr Carole Hodge, author of Britain and the Balkans, has also slated the judgment, which she says "represents a significant step backwards in international jurisprudence on the Balkans".

She questioned the judges’ decision to apply the standard of a previous ICJ ruling - that of Nicaragua versus the United States in 1986 - to determine if the former Yugoslavia had “effective control” of the VRS and paramilitary forces involved in the Srebrenica massacre.

This means a country’s control over paramilitaries or other non-state actors can be established only if the people or groups in questions act in “complete dependence” on the state – a level of dependency not found by the ICJ to exist between VRS and paramilitary forces and Serbia.

To apply such a high threshold when determining state control “could set the precedent of allowing states to carry out crimes through non-state actors without incurring any direct responsibility”, she said.

Dr Andre de Hoogh, a senior lecturer in international law at the University of Groningen, agrees.

He says the court should have used the standard applied by the ICTY in 1999 in the appeal of Bosnian Serb politician Dusko Tadic, which rejected the Nicaragua test of “effective control”.

In this case, prosecutors only had to prove that the Yugoslav army exercised “overall control” over the VRS - by planning, organising and coordinating operations - as opposed to giving forces the specific instructions required to show a situation of effective control.

But applying the Tadic standard would not necessarily have changed the outcome, he said.

De Hoogh also questions the evidence used to prove former Yugoslav president Slobodan Milosevic’s awareness of the genocide at Srebrenica - and the subsequent finding that he should have used his influence to prevent it.

“I don’t find it convincing. The evidence purporting to show Milosevic's awareness appears insubstantial,” he said.

“There’s a certain opinion that Serbia and Montenegro were responsible for the war in Bosnia – an opinion that I share – but that doesn’t necessarily mean that they wanted genocide to be committed in Bosnia. And it may be noted the court found against the contention that genocide had been committed, except with respect to Srebrenica,” he said.

De Hoogh believes that the judgment “must” affect the future trials at the ICTY of Momcilo Perisic, the former head of the Yugoslav army, and Jovica Stanisic and Franko Simatovic, alias Frenki, former commanders of the Serbian state security services.

“In these trials, judges must either follow the ICJ’s ruling or provide arguments to explain why they have gone against it,” he said.

Dr Larissa van den Herik, an assistant professor in public international law at Leiden University, notes the close working relationship between the two courts revealed by the judgment.

"The ruling really relies on ICTY findings. The ICJ is often perceived to be at the top of the hierarchy of UN courts, but it might be more appropriate to say there is a division of labour between them," she said.

More importantly, she says the ICJ "has endorsed, perhaps even given value" to the two existing genocide convictions at the ICTY, which had

previously come under fire for applying a "lenient" interpretation of the crime.

Van den Herik dismisses the claim made by some academics that genocide is too difficult to prove - but rather is a narrowly defined legal definition, which is sometimes charged in circumstances where it doesn't apply.

In this particular case, she says, a gap in international law meant the Genocide Convention had to be used.

"The only way for Bosnia to go to the ICJ was to allege genocide. There is no Crimes against Humanity Convention providing for jurisdiction for the ICJ," she said.

She is concerned that too much focus is placed on the crime of genocide, which is often erroneously held up by victims, the media - and even ad hoc tribunal judges - as the crime of crimes.

"Genocide and crimes against humanity are of equal gravity, yet everyone feels that genocide is worse and carries an extra stigma," she said.

This preoccupation with genocide is particularly prevalent in the former Yugoslavia, she said.

"There, if you are a victim of genocide, does that mean you a higher status of victim?" she asked.

Dr Robert Cryer, an expert on international criminal law from the University of Nottingham, is also concerned that undue emphasis is placed on genocide.

In relation to the ICJ ruling, he said, “It’s important to remember that just because an atrocity may not meet the strict definition of genocide, that doesn’t make it acceptable.”

Cryer doesn’t think that future cases at the ICTY, involving former officers of the Serbian military and secret services in relation to their alleged role Bosnian conflict, will be greatly affected by the ICJ judgment.

“I think the defence will mention it, but the ICTY applies the test of individual rather than state responsibility, and doesn’t have to prove that suspects had, for example, control over paramilitaries,” he said.

He sees no contradiction in a judgment which admits it was unable to determine the degree of control that Serbia had over events, yet finds that it should have used its influence to prevent genocide.

“The judgment said Belgrade had influence - that’s not the same as control, although there is a fine line between the two,” he said.

But Professor Johannes Houwink ten Cate, a historian at the Netherlands War Documentation Centre and a professor of genocide studies, disagrees.

“If the court says Serbia had influence on the RS and the VRS, where does influence change into a situation of control? The court is walking a tight rope. Notions of influence and control are highly debatable, and there is no legal yardstick you can apply,” he said.

To hold one state responsible for its failure to intervene to prevent crimes in another could set a precedent that creates a lot of lawsuits and a lot of problems, he said.

Houwink ten Cate says that without the testimony of a key witness, it is very hard to shed light on the relationship between the VRS and Belgrade.

“Is it possible to make a final judgment on this particular situation when you haven’t spoken to Mladic? I find that doubtful,” he said.

“In these cases, it’s difficult to prove a direct link between Belgrade and Srebrenica. The only remaining hope is that Mladic comes to The Hague.”

Caroline Tosh is an IWPR reporter.

More IWPR's Global Voices

Georgia: Perils of the Enguri Crossing
With the checkpoint closed, some residents of Abkhazia are risking their lives to access services.
Georgia: Perils of the Enguri Crossing
Trapped in Eastern Ukraine